Terms and Conditions of Purchase
US - Ingevity PO Terms And Conditions (Download PDF)
China - Ingevity PO Terms And Conditions (Download PDF)
Europe (excluding UK) - Ingevity PO Terms And Conditions (Download PDF)
United Kingdom - Ingevity PO Terms And Conditions (Download PDF)
1.DEFINITIONS – “Affiliate” means, with respect to any entity, any other entity controlling, controlled by, or under common control with, such entity at the time in question; and “control,” for the purposes of this definition, means the ability, directly or indirectly, to direct the affairs of another by means of ownership, contract or otherwise. “Agreement” means a paper or electronic agreement between Seller and Purchaser duly executed by authorized representatives of both parties to sell or provide and to buy or use goods or services pursuant to which a Purchase Order is issued by the Purchaser. “Seller” means the party identified as the Seller in the Agreement or the Purchase Order. “Purchaser” means Ingevity Corporation and its subsidiaries, business units or Affiliates, if any, specified in the Agreement or the Purchase Order. “Confidential Information” means allPurchaser know-how, technical information, business information, data, designs, specifications, plans, drawings, experience or knowledge reasonably related to the transaction that is the subject of the Contract, whether transmitted in writing, orally or electronically, including initial or preliminary discussions, to the extent the same is or are non-public or confidential including without limitation:(a) manufacturing plans, processes, procedures, operations, reports, drawings, manuals, equipment, engineering information, technical information, and plant and equipment layouts and configuration; (b)product plans, prototypes, samples, formulae, and specifications, and information related to project designs, marketing, advertising, quality, costs, configurations and uses; (c) customer and vendor lists and information, business plans, sales volumes, profitability figures, financial information or other economic or business information; and (d) computer software, firmware, data, databases, networks, security procedures, or other information related directly or indirectly to computer systems or networks. “Contract” means the Agreement, if any, the Purchase Order, all paper or electronic documents incorporated by reference under the Agreement and the Purchase Order, these terms and conditions themselves and any confidentiality or non-disclosure agreement executed by Purchaser and Seller, and all exhibits and amendments to all such documents. “Items” mean any goods or services to be provided or performed by Seller under the Contract. “Price” means the amount to be paid by Purchaser to Seller under the Contract for the Items, which shall include all applicable taxes, fees and duties.“Purchase Order” means the purchase order issued by Purchaser and these Terms and Conditions of Purchase.
2.ACCEPTANCE – Seller’s acceptance of any Purchase Order (which shall occur, without limitation, upon the earliest of when Seller ships Items, when Seller provides an invoice after receipt of a Purchase Order, or when Seller takes any other action in connection with fulfillment of the Purchase Order) shall be expressly limited to the terms of the Contract, and Purchaser objects to any contrary term contained in any quotation, order, acknowledgement, invoice or other document originating with Seller. Any terms and conditions in any purchase order, Seller’s terms and conditions of sale, any release order, acknowledgement, invoice or other paper or electronic document, other than the Contract, issued by either Seller or Purchaser are superseded by the Contract. By shipping goods, performing services or invoicing after receipt of a Purchase Order, Seller shall conclusively be deemed to be bound by these Terms and Conditions of Purchase and all other provisions of the Contract.Notwithstanding any prior custom, practice or course of dealing between Purchaser and Seller or generally within the industry, Purchaser can insist on strict adherence to the Contract.
3.BLANKET ORDER – If the Purchase Order is designated by Purchaser as a blanket order, Purchaser shall be obligated to purchase only those quantities of Items which it specifically requests under separate subsequent release orders issued by Purchaser to Seller.
4.PRICE; TAXES – The Price shall be that stated in the Purchase Order unless such price exceeds the Price stated in the Agreement, if any, or the lowest price at which Seller is selling Items or similar items to its other customers as of the date of delivery to Purchaser, in which case the lower price shall control. If there is no price stated in the Purchase Order or Agreement, the Price shall not be higher than that last charged or quoted Purchaser for such Items by Seller. If prior to delivery of the Items, Purchaser is able to purchase a portion or all of the Items, or similar items of like quality, at a price which is less than the Price, Purchaser shall notify Seller. Should Seller fail to meet such lower price, Purchaser may, at its option, purchase from the other source at the lower price, in which event Purchaser and Seller shall be released of their obligations under the Contract in respect of that portion of the Items or similar items purchased from the other source.Unless otherwise agreed to in writing, Seller shall pay and comply with all applicable contributions, taxes, duties or premiums arising out of the performance of the Contract, and all sales, use or other duties or taxes of whatever nature levied or assessed against Purchaser or Seller arising out of the Contract, including any interest or penalties.If the applicable law of any jurisdiction from which Items are exported or into which Items are imported prohibits Seller from paying any contributions, taxes, duties or premiums described herein, then Purchaser shall be responsible for the payment of such taxes and the amount so paid by Purchaser shall be reimbursed by Seller to the extent permitted by applicable law.Seller shall obtain and pay for all permits, licenses, fees and certificates of inspection necessary for providing the Items hereunder.
5.DRAWINGS AND SPECIFICATIONS – Any specifications, drawings, notes, instructions, engineering information, or technical data furnished by either Purchaser or Seller to the other, or referred to in the Contract shall be incorporated herein by reference. Seller shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver the Items in compliance with all requirements of the Contract. Purchaser shall retain title to all such documents which it provides or causes to be given to Seller, and Seller shall not use any of such documents or the information contained therein for any purpose other than in performance of the Contract. Seller shall not disclose such documents or information to any party other than Purchaser or a party duly authorized by Purchaser. Upon Purchaser’s request, Seller shall promptly return to Purchaser or destroy all such documents and copies thereof.
6.DELIVERY – The Seller shall deliver the Items to Purchaser on the date(s) indicated in the Purchase Order. If Seller anticipates that it will not deliver the Items on the date(s) indicated, Seller shall immediately notify Purchaser by the fastest means available of the anticipated failure and the anticipated actual delivery date. If Seller fails to make delivery of any part of the Items on the date(s) indicated in the Purchase Order, the Purchaser may terminate the Contract and pursue other remedies. All shipments shall be delivered F.O.B. to the destination designated by Purchaser in the Purchase Order, and title and risk of loss shall remain with Seller until the Items, in a completed state, are received by Purchaser, its agent or consignee regardless of whether or not Purchaser has made full payment for the Items. Seller will provide bills of lading and shipping notices directly to the F.O.B. destination on the day of shipment. Bills of lading shall indicate the relevant purchase order number. Purchaser may require adherence to its routing instructions, and any savings resulting from adherence to such instructions shall be for the benefit of Purchaser. Seller, or the carrier it uses to deliver Items, whichever is applicable, shall (a) maintain a “satisfactory” safety rating from the U.S. Department of Transportation and shall provide Purchaser with written proof of such rating on request if the carrier is a motor carrier, and (b) shall maintain comprehensive general liability, bodily injury and property damage insurance in not less than the amount required by the Insurance Section, unless a larger amount is required by any federal, state, or local regulatory agency, in which event such larger amount shall be maintained.
7.WARRANTY – Seller warrants that the Items will (a) be of merchantable quality; (b) be fit for the Purchaser’s particular purposes; (c) be of high quality and be free from defects in material and workmanship; (d) comply with the most stringent of Purchaser’s or Seller’s specifications, performance guarantees and requirements; and (e) comply with all nationally recognized codes and established industry standards. All Items shall be sold by Seller to Purchaser free and clear of any liens and encumbrances. Seller’s warranties and guarantees shall survive inspection, delivery and acceptance of the Items and/or payment by Purchaser. If the Items do not conform to any of these warranties, then, at Purchaser’s option, Seller shall repair or replace the defective Items, F.O.B. Purchaser’s designated site at Seller’s expense, or in the case of services, re-perform the services at Seller’s expense. In the event that, in the reasonable opinion of Purchaser, Seller cannot repair or replace the items, or re-perform the services, within a reasonable time, then Purchaser may take all steps necessary to have the breach of warranty cured and/or may terminate the Purchase Order and/or the Contract. In any event, Seller shall be responsible for all expenses and damages which Purchaser incurs because of the breach of warranty. The foregoing warranties and obligations shall also apply to the Items supplied by Seller in such repair, replacement or re-performance. Disclaimers of express or implied warranties and limitations of liability in any Seller document will be of no effect unless specifically agreed to in writing by Purchaser, and even then shall not apply in the event of bad faith by the Seller in the performance of the Contract.
8.SERVICES PERFORMED IN LOUISIANA - If Seller performs services in Louisiana, Purchaser and Seller hereby agree that Purchaser is designated and recognized as the statutory employer of Seller’s direct and statutory employees, pursuant to La. R.S. 23:1061(A)(3). Purchaser and Seller further agree that the services required of Seller and its direct and statutory employees pursuant to the Contract are an integral part of and are essential to Seller’s ability to generate its goods, products, and services. This provision is included for the sole purpose of establishing a statutory employer relationship to gain the benefits expressed in La. R.S. 23:1031 and La. R.S. 23:1061, and is not intended to create an employer/employee relationship for any other purpose.
9.CHANGES – Purchaser shall have the right to make changes (including additions and/or omissions) from time to time in the Items, any specifications and/or drawings which are a part of the Contract, method of shipment or packing and/or the time and/or place of delivery. Purchaser shall give Seller written notice of any such change which notice may include any increase or decrease in the cost of or the time required for performance of the Contract determined by Purchaser to be appropriate. If Seller does not agree with such adjustments, Seller shall still be obligated to proceed immediately with all of the changes directed by Purchaser without waiting to reach an agreement on any such adjustments. Any claims by Seller for adjustments after its receipt of Purchaser’s change order must be asserted in writing to Purchaser not more than ten (10) days after such receipt by Seller or such claim shall be null and void.Changes made pursuant to this paragraph are referred to as “Changes”.
10.PAYMENTS AND INVOICES – The specific terms of payment for all Items are stated in the Purchase Order or Agreement. Unless otherwise specified there or in a separate written instrument signed by Purchaser, no invoice shall be issued by the Seller prior to the shipment or performance of the Items covered thereby, and no payment shall be made prior to receipt of such Items and of a proper invoice for such Items. Seller shall indicate the appropriate Purchaser purchase order number on the invoice and shall deliver it to the address specified by Purchaser from time to time. All claims for money due from Purchaser shall be subject to set-off by Purchaser by reason of any counterclaim arising out of the Contract or any other transaction with Seller.Payment for Items delivered hereunder shall not constitute acceptance of such Items.
11.INSPECTION – Purchaser may inspect any Items ordered hereunder during their manufacture, construction or preparation at reasonable times and shall have the right to inspect such Items at the time of their delivery and/or completion. Items furnished hereunder may at any time be rejected for defects revealed by inspection or analysis even though such Items may have previously been inspected and accepted. Such rejected Items may, at Purchaser’s option, be returned to Seller for full refund to Purchaser, including removal, shipping and transportation charges.
12.AUDIT RIGHTS – Seller will retain such records necessary for the proper administration of this Contract and all other written materials prepared by Seller, during the term of the Contract and for three (3) years after the expiration, termination or cancellation of the Contract and for any additional time required by governmental authorities with jurisdiction over Seller. Purchaser or its designee has the right (but not the obligation), upon reasonable notice to Seller, during the term of the Contract and for three (3) years following the expiration, termination or cancellation of the Contract, to audit and inspect Seller’s books, records and other materials as described in above with respect to compensation, services and materials to the extent such services were performed on a time and materials basis.
13. INTELLECTUAL PROPERTY – Seller shall indemnify and hold harmless the Purchaser, its customers, contractors and agents from any and all claims for infringement of any patent, copyright, trademark or other proprietary right of any third party, by reason of the design, manufacture, purchase, use or sale of the Items and shall indemnify Purchaser for all costs, expenses, judgments, liability and damages, including attorneys’ fees, which Purchaser may incur or have rendered against it by reason of any alleged infringement. Purchaser reserves the right to be represented in any infringement proceeding. In the event an injunction is obtained against use of the Items, Seller shall do any of the following requested by Purchaser: (a) procure for Purchaser the right to continue using the Items; (b) replace the Items with equivalent or better non-infringing Items; (c) modify the Items, so that they become non-infringing, provided they perform in an equivalent or better manner. The foregoing is in addition to any other remedies available to Purchaser.
14. COMPLIANCE WITH LAWS AND REGULATIONS – Seller represents and warrants that neither any of the Items provided to Purchaser nor their manufacture, fabrication, construction, transportation or use shall violate or cause Purchaser to be in violation of applicable laws, regulations, codes , standards, rules, requirements or orders. In the event of any conflict between the provisions of any applicable laws, regulations, codes, standards, rules, requirements or orders described in this Section, the more or most stringent provisions shall apply. Seller shall promptly take, at its expense, all action necessary to make all Items comply with the applicable federal, state or local laws, codes, ordinances, regulations, rules, standards, requirements or orders after Seller receives either from the applicable agency or from Purchaser a notice that some violation exists with respect to the Items. If Seller fails to promptly take such action, Purchaser may take all such action at Seller’s expense. Seller shall also be liable for the payment of any penalties and/or fines imposed as a result of the failure of any Item provided by or for Seller hereunder to comply with all of the above requirements.Seller shall only utilize laborers who have a legal right to work in the country in which the work is to be performed.
15. FOREIGN CORRUPT PRACTICE LAWS – Seller (and its partners, employees, representatives and agents), and the Items being directly or indirectly provided by Seller, shall comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) and the applicable anti-bribery and anti-corruption laws of any country outside the United States in which Seller will perform services (“Corrupt Practice Laws”). If Seller learns of or has reason to know of any payment, offer or agreement relating to the Items that is contemplated or that has occurred and that represents or could represent a violation of the FCPA or Corrupt Practices Laws, Seller shall immediately advise Purchaser’s General Counsel, in writing, at the address set forth in Section 36. Purchaser shall be permitted to take reasonable steps to avoid, mitigate or investigate such an actual or potential violation of the FCPA or Corrupt Practices Laws, including by reviewing Seller’s books and records, and shall have the right to audit Seller for these purposes at any time upon reasonable notice. Seller agrees to cooperate with Purchaser as it exercises its rights hereunder. Purchaser may disclose the Agreement and any information that it obtains hereunder to any government agency, regulatory authority or other persons that Purchaser has determined, in its discretion, have a need for such information. In addition to the foregoing, while the Items are being provided, Seller must promptly notify Purchaser in writing upon learning or forming a reasonable belief that Seller, directly or through any agent or service provider, paid any bribe that is punishable under the FCPA (or would be if Seller was subject to that statute) or Corrupt Practices Laws. The preceding sentence applies to Seller’s conduct irrespective of whether the bribe in question relates to or benefits the Items or Purchaser; however, the provision of such notification shall not represent a breach under the Agreement unless the actual or suspected bribe relates to the Items contemplated under the Agreement.
16. CONFLICT MINERALS – Pursuant to Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the conflict minerals rule adopted by the SEC in August 2013, Seller warrants that it will not provide tin, tantalum, tungsten or gold (“Conflict Minerals”) pursuant to the terms of the Contract that were sourced from the Democratic Republic of the Congo or Angola, Burundi, Central African Republic, Congo Republic, Rwanda, Sudan, Tanzania, Uganda, and Zambia (“DRC Countries”).
17. PRINCIPLES OF CONDUCT – As a condition to doing business, Purchaser requires its manufacturers and suppliers of goods and its service providers to comply with its Principles of Conduct, which can be found at http://www.ingevity.com/principles-of-conduct/ (the "Principles of Conduct"). Seller shall conduct its business in compliance with the Principles of Conduct, as they may be amended from time to time by Purchaser. In addition, Purchaser may present to Seller for review the codes of conduct or other compliance policies and procedures of one or more of its customers and licensors. Seller shall then determine whether or not it can comply with such customer or licensor requirements, and shall promptly advise Purchaser accordingly in writing. If Seller agrees to comply with the codes of conduct or other compliance policies and procedures of any of Purchaser’s customers or licensors, such codes, policies and procedures shall become obligations of Seller under the Contract and shall be incorporated herein by reference. Seller also agrees to require its subcontractors and suppliers who manufacture products or components of the Items or provide services for Purchaser to abide by the Principles of Conduct and any additional customer and licensor codes, policies and procedures to which Seller has agreed to comply. Purchaser’s representatives and agents may inspect Seller’s and its subcontractors' and suppliers’ facilities and interview their employees from time to time to audit compliance with the Principles of Conduct. The representatives and agents of Purchaser’s customers and licensors may inspect Seller’s and its subcontractors' and suppliers’ facilities and interview their employees from time to time to audit compliance with those additional codes of conduct and compliance policies and procedures to which Seller has agreed to comply. Seller and its subcontractors and suppliers shall grant all such representatives and agents access to their facilities, records and employees to conduct the audits, and Seller and its subcontractors and suppliers shall cooperate with all reasonable requests of the representatives and agents in the performance of the audits. The foregoing rights and obligations apply to all factories that manufacture products or components or provide services for Purchaser. Seller acknowledges that its failure or the failure of its subcontractors or suppliers to comply with the Principles of Conduct, as well as any codes of conduct or other compliance policies and procedures of Purchaser's customers and licensors to which Seller has agreed to comply, will constitute a material breach of the Contract.
18.EQUAL EMPLOYMENT OPPORTUNITY AND OTHER NONDISCRIMINATION CLAUSES – This provision applies only in the event that the Items are to be used in whole or in part for the performance of United States government contracts and where the dollar amount exceeds, or may in any one year exceed $10,000, or when required by the Federal Acquisition Regulations. Seller hereby agrees that the provisions of the Equal Opportunity Clause, as promulgated by Executive Order 11246 dated September 24, 1965, as amended; the Vietnam Era Veterans Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973; and the implementing regulations found at 41 C.F.R. 60-1 and 2, 41 C.F.R. 60-250, and 41 C.F.R. 60-741; as well as 48 C.F.R. 52.219-8, Utilization of Small, Small Disadvantaged and Women Owned Business Concerns (June 1997); 48 C.F.R. 52.219.9, Small, Small Disadvantaged and Women-Owned Business Subcontracting Plan (August 1998); 48 C.F.R. 52.222-35, Affirmative Action for Special Disabled and Vietnam Era Veterans (April 1984); 48 C.F.R. 52.222-37, Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era (January 1988); and 48 C.F.R. 52.222-36, Affirmative Action for Handicapped Workers (April 1984), are hereby incorporated by reference into the Contract, with the same force and effect as if they were given it in full text. The full text is available upon request. The Parties shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified, protected veterans and qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified, protected veterans and individuals with disabilities. Seller shall execute and deliver to Purchaser a completed Certificate of Compliance using Purchaser’s form of Certificate before starting to perform, under the Contract.
19.LIENS – If at any time there shall be evidence of the existence of any lien or claim for work done or materials, services or equipment furnished by Seller or any other party in connection with the Contract, Purchaser may use money then due or to become due under the Contract to discharge such lien or satisfy such claim and may credit such amounts against the amounts due or to become due to Seller.
20.INDEMNITY – TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS PURCHASER, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY THIRD PARTY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) ASSESSED AGAINST OR INCURRED BY ANY OF THEM RESULTING FROM ANY AND ALL ACTIONS, SUITS, CLAIMS OR DEMANDS (“CLAIMS”) ARISING OUT OF OR RELATED IN ANY WAY TO: (I) ANY CLAIM FOR BODILY INJURY OR DEATH OF ANY PERSON OR DAMAGE TO PROPERTY, (II) ANY CLAIM THAT THE MATERIALS DELIVERED UNDER THE CONTRACT BY SELLER INFRINGE ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER PROPRIETARY RIGHT OF ANY THIRD PARTY, (III) ANY CLAIM OR ACTION BY A SUBCONTRACTOR OF SELLER ARISING OUT OF SELLER’S BREACH OR VIOLATION OF SELLER’S SUBCONTRACTING ARRANGEMENTS, (IV) ANY BREACH OF SELLER’S REPRESENTATIONS, WARRANTIES, CONVENANTS OR OBLIGATIONS UNDER THIS CONTRACT; (V) ANY THIRD PARTY CLAIM AGAINST PURCHASER FOR AMOUNTS OWED BY SELLER, IN WHOLE OR IN PART, OR FOR WHICH SELLER IS OTHERWISE RESPONSIBLE, (Vi) ANY CLAIM ARISING OUT OF, OR IN CONNECTION WITH, ANY FRAUDULENT OR DISHONEST ACTS COMMITTED BY SELLER’S EMPLOYEES OR AGENTS, ACTING ALONE OR IN COLLUSION WITH OTHERS. PURCHASER SHALL HAVE THE RIGHT TO PARTICIPATE IN ITS OWN DEFENSE AND TO CONSENT TO THE SELECTION OF COUNSEL. IN NO EVENT SHALL SELLER ENGAGE IN MEDIATION OR SETTLEMENT DISCUSSIONS OR AGREE TO SETTLE ANY CLAIM WITHOUT PURCHASER’S CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD.
21.INSURANCE – Seller will obtain, pay for and keep in force insurance coverage meeting all of the specifications in this Section during the term of the Contract, and for any extensions thereof. If any insurance obtained is “claims made” insurance, any such policies must be maintained in full force and effect for an additional two (2) years after the term of the Contract ends for whatever reason and/or the end of any extensions of the term: (a) Workers’ Compensation – Statutory; (b) Employer’s Liability – Bodily Injury by Accident - $1,000,000 each accident; Bodily Injury by Disease - $1,000,000 each employee; Bodily Injury by Disease - $1,000,000 policy limit; (c) Commercial General Liability (Bodily Injury, including premises, contractual, products liability or completed operations coverage) $1,000,000 in the aggregate; $1,000,000 each occurrence in the aggregate; (d) Commercial General Liability (Property Damage, including premises, contractual, products liability or completed operations coverage with the explosion, collapse and underground damage exclusions deleted) $1,000,000 each occurrence; $1,000,000 in the aggregate; (e) Business Automobile Liability – Bodily and Property Damage, $1,000,000 combined single injury limit and each occurrence; (f) Errors and Omissions Liability – not less than $2,000,000 per year covering Seller’s obligations under the Contract with a per claim deductible satisfactory to Purchaser; (g) Excess Liability –not less than $5,000,000 per occurrence (Excess policy(ies) must provide coverage for the types of insurance set forth in (b), (c) and (d) above). All insurance companies must be authorized to do business in the State(s) or Commonwealth(s) where business is transacted covering all operations under the Contract. All insurance companies utilized to provide coverage required under the Contract must be rated “A-” or better with a financial rating of VII or better in the most recent edition of the A.M. Best Rating Guide. All insurance must be primary and non-contributory to any insurance that Purchaser may otherwise carry. Seller’s policy must include Purchaser, its Affiliates, directors, officers, and employees, as Additional Insureds and waive any rights of subrogation against Purchaser, its Affiliates, directors, officers and employees. Seller shall provide Purchaser with thirty (30) days prior written notice in the event of cancellation or non-renewal of the insurance listed herein. Certificates of Insurance for all insurance coverage required in the Contract must be provided to Purchaser prior to commencement of any services under the Contract and such Certificate must contain an endorsement confirming status as an “Additional Insured” as provided in the Contract. Notwithstanding anything to the contrary, the limits of insurance above will in no way limit Seller’s liability assumed under the Contract. FAILURE OF SELLER TO PROVIDE INSURANCE AS HEREIN REQUIRED OR FAILURE OF PURCHASER TO REQUIRE EVIDENCE OF INSURANCE OR TO NOTIFY SELLER OF ANY BREACH BY SELLER OF THE REQUIREMENTS OF THIS PARAGRAPH WILL NOT BE DEEMED TO BE A WAIVER BY PURCHASER OF ANY OF THE TERMS AND CONDITIONS OF THE CONTRACT, NOR WILL THEY BE DEEMED TO BE A WAIVER OF THE OBLIGATIONS OF SELLER TO DEFEND, INDEMNIFY, AND HOLD HARMLESS PURCHASER AS REQUIRED HEREIN. If and when Seller uses subcontractors in connection with Seller’s performance hereunder, Seller will ensure that such subcontractors have and maintain comparable insurance, commensurate with the services being subcontracted, with the endorsements and minimum limits of coverage set forth above and they include Purchaser and its Affiliates, directors, officers and employees as Additional Insureds with respect to the coverages set forth above. Seller will obtain, prior to the commencement of the subcontractor’s services, the required certificates of insurance and additional insured requirements.
22. TERMINATION, SUSPENSION OR DELAY – Purchaser shall have the right at any time to terminate, suspend, or delay the Contract in whole or in part by prior written notice to Seller. In the case of termination of the Contract, Seller shall then transfer to Purchaser or destroy, in accordance with Purchaser’s directions, all materials and all information accumulated, specifically prepared or acquired by Seller for use in the performance of the Contract. Seller shall, if directed by Purchaser and to the extent stated in the notice of termination, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the Items whether still at Seller’s manufacturing facilities or in transit to Purchaser’s facilities. If Seller is not then in default in the performance of any of its obligations hereunder, and if Seller has taken reasonable steps to mitigate its damages resulting from such termination, Purchaser shall pay to Seller, as Seller’s sole and exclusive remedy for termination under this Section, to the extent not already paid to Seller, an amount equal to: (a) the reasonable and documented costs incurred by Seller in accordance with the Contract prior to Seller’s receipt of notice of termination, plus, (b) the reasonable and documented costs and charges incurred by Seller in winding up its activities under the Contract prior to the effective termination date; provided, however, that the amounts listed in (a) and (b) of this Section plus prior payments to Seller shall in no event exceed the Price. Before Purchaser resumes performance under the Contract following such suspension or delay, Seller and Purchaser shall negotiate in good faith on the adjustments, if any, which may be required in payments to Seller or in the Price to avoid inequities either to Seller or Purchaser.
23. DEFAULT – If Seller: (a) becomes insolvent; (b) has a petition under any chapter of the bankruptcy laws filed by or against it; (c) makes a general assignment for the benefit of its creditors; (d) has a receiver requested for an appointed to it; or (e) fails to comply with any of its obligations under the Contract, then Purchaser may, in addition to its rights under the Warranty Section above, at its option either cure the default at Seller’s expense or terminate the Contract, after first giving Seller ten (10) days written notice to cure such default, if Seller has failed to cure such default within such ten (10) day period. Immediately after such termination, Purchaser may: (i) take possession of the Items wherever they may be located and in whatever state of completion they may be together with all drawings and other information necessary to enable Purchaser to have the Items completed, installed, operated, maintained and/or repaired; (ii) pay to Seller any amount then due under the Contract after taking full credit for any offsets to which Purchaser may be entitled; (iii) contract with or employ any other party to finish the Items; and (iv) collect from Seller any additional expense, losses or damage which Purchaser may suffer.
24. PURCHASER’S RIGHT AND REMEDIES – Any rights or remedies granted to Purchaser in any part of the Contract shall not be exclusive of, but shall be in addition to, any other rights or remedies granted in any other part of the Contract and to any other rights or remedies that Purchaser may have at law or in equity.
25. PACKING AND MARKING – All Items shall be packed, crated and braced to prevent damage or deterioration and in accordance with Uniform Freight Classification Rules and Regulations, and Carrier Tariffs with no charges being paid by Purchaser for packing, crating or bracing. The contents of each shipping container shall be clearly identified on the outside of the container, and the applicable Purchase Order number for the contents shall be clearly stated on the outside of each such container.
26. CONFIDENTIAL TREATMENT; CONFIDENTIAL INFORMATION – Seller shall not disclose in any advertisement or promotional material or in any other manner, without the prior written consent of Purchaser, in each instance, that Purchaser has purchased or contracted to purchase the goods or services ordered.Seller shall not, without express written consent of Purchaser, use or disclose to any person, company or governmental agency any Confidential Information, except that Seller may disclose Confidential Information to those if its employees or professional advisors who need to know such information and who are bound in writing to Seller not to disclose the Confidential Information to any other person, company or governmental agency.If Seller becomes legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, Seller will provide Purchaser with prompt prior written notice of such requirements so that Purchaser may seek a protective order or other appropriate remedy.If a protective order or other remedy is not obtained, Seller agrees to furnish only that portion of Confidential Information that Seller, upon written opinion of counsel, is legally required to disclose, and it agrees to exercise reasonable commercial efforts to obtain assurances that confidential treatment will be accorded such Confidential Information.
27. ASSIGNMENT – Seller may not assign the Contract or any right thereunder without the prior written consent of Purchaser. A change of control of Seller constitutes an assignment hereunder.
28. WAIVER – The failure of either party hereto to require strict compliance with or complete performance of any obligation of the other party hereto by such other party shall not be construed as a waiver of any subsequent breach by such other party.
29. ENTIRE AGREEMENT – The Contract sets forth the entire agreement between Seller and Purchaser on the subjects covered herein, and, except as otherwise provided above in the Changes Section, no terms, conditions, understanding or agreement purporting to modify or vary the terms of the Contract shall be binding unless made in writing and signed by Seller and Purchaser. In the event of any conflict between any provision of these terms and conditions and any other provisions of the Contract, these terms and conditions shall prevail or control unless (a) the conflicting provision in such other document expressly states that is supersedes these terms and conditions or (b) the conflicting provision is in a paper or electronic Purchase Order issued by Purchaser or an Agreement, in which event such conflicting provision shall prevail or control over these terms and conditions and over an conflicting provision in any other part of the Contract. No course of prior dealings between the parties or any trade usage shall be relevant to supplement or explain any term used herein.
30. SEVERABILITY – In the event that any provision of the Contract shall violate any applicable statute, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision of the Contract.
31. GOVERNING LAW – The Contract and all the performance thereunder shall be governed by and construed in accordance with the laws of the State of South Carolina. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
32. BUSINESS INFORMATION – Purchaser may request and collect certain business contact information, including but not limited to personal names, company names, addresses, telephone numbers and email addresses. Once collected, Purchaser may transmit this information outside of the Seller‘s home country to its internal servers, including those located in the United States. This information will be held securely as Purchaser‘s business information and used only for Purchaser‘s business purposes.
33. SUBCONTRACTING – Seller shall not subcontract any of its duties or obligations under the Contract without the prior written consent of Purchaser. No provision in the Contract or in any such subcontract, transfer, delegation, or assignment shall create or give to third parties any claim or right of action against Purchaser. Seller agrees that it is as fully responsible to Purchaser for the acts and omissions of any subcontractor and of persons either directly or indirectly employed by such subcontractor, as Seller is for the acts and omissions of persons directly employed by Seller.
34. SURVIVAL – All warranties, remedial obligations, limitations of liability, indemnities, and confidentiality rights and obligations provided herein will survive the cancellation, expiration or termination of the Contract.
35. LIMITATION ON PURCHASER’S LIABILITY - IN NO EVENT SHALL PURCHASER BE LIABLE FOR LOSS OF USE DAMAGES OR LOSS OF ANTICIPATED PROFITS OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER.IN NO EVENT SHALL PURCHASER’S LIABILITY UNDER A PURCHASE ORDER EXCEED THE AMOUNT PAID BY PURCHASER UNDER SUCH PURCHASE ORDER.Any claim for damages by Seller against Purchaser arising in any manner or related in any way to Purchaser’s purchase of Items hereunder must be commenced within one year after the claim has accrued.
36.NOTICES-All notices and other communications between the parties which must or may be given pursuant to the Contract will be deemed to have been sufficiently given when delivered by personal service or sent by recognized overnight courier service or written telecommunication to the addressee party at the following address:
If to Seller, to:
Name and address on front of Purchase Order
If to Purchaser, to:
5255 Virginia Avenue
North Charleston, South Carolina
With a copy to:
5255 Virginia Avenue
North Charleston, South Carolina
or to such other address or person as the addressee party may designate in writing from time to time in accordance with this paragraph.All such communication will be deemed to be effective on the earlier of (a) actual receipt or (b) if sent by courier service, on the second day following the date presented to the courier service for delivery to the other party, or (c) if sent by written telecommunication, on the sending date (subject to confirmation of receipt in complete legible form).
37. RELATIONSHIP OF PARTIES:The Contract is not intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the parties.Each party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way or to represent that the other party is in any way responsible for any acts or omissions of such party.