General Conditions of Purchase („GCP”)

General Conditions of Purchase („GCP”)
of Salzwelten GmbH, FN 55025w, with its residence in 4830 Hallstatt, Salzbergstraße 21 (SALZWELTEN), with further locations in 8992 Altaussee, 5422 Bad Dürrnberg-Hallein and 4820 Bad Ischl.

General

The equipment, materials, or supplies (“Goods”) and/or services (“Services”) furnished by Supplier (together, the “Goods and Services”) and covered by the purchase order (“PO”) placed by Salzwelten GmbH, FN 55025w, 4830 Hallstatt, Salzbergstraße 21,  (“Purchaser”) and/or other agreement (which, when combined with these Terms and Conditions and any other documents incorporated by reference, will constitute the “Agreement”) are governed by the terms and conditions set forth herein (the “GCP”).

As used herein, the term "Supplier" includes Supplier and its sub-suppliers at any tier. Purchaser and Supplier individually will be referred to as “party” and collectively as “parties”. The terms used in the singular also apply to the respective plural. For easier readability, the masculine form of personal nouns has been chosen. However, women and men are addressed equally by the texts.

 

Inquiry, offer and acceptance

Inquires shall always be without commitment, unless explicitly stated to the contrary in writing. Supplier shall diligently check all data contained in the inquiry or in the PO, including but not limited to the technical requirements and conditions, other descriptions, specifications and data with respect to the technical feasibility and fitness for the intended purpose, and shall inform Purchaser without delay of any circumstances which could frustrate, aggravate or delay the execution of the PO and/or the intended use of the supplied goods and/or services. This shall also apply to any subsequent modification or amendment of any Agreement. Supplier shall be bound to his offer at least 14 days upon receipt thereof. Any costs incurred in connection with the preparation and submittal of the offer (including cost estimates) shall always be borne by Supplier.

These GCP shall constitute the final, complete and exclusive state of the agreement between the parties and no other terms or conditions will be binding upon the parties unless accepted by them in writing. Written acceptance or shipment of all or any portion of the Goods, or the performance of all or any portion of the Services, covered by the Agreement, will constitute Supplier’s unqualified acceptance of all of the Agreement’s terms and conditions. The terms of any proposal referred to in the Agreement are included and made a part of the Agreement only to the extent the proposal specifies the Goods and/or Services ordered, the price therefore, and the delivery thereof, and then only to the extent that such terms are consistent with the terms and conditions of the Agreement and these GCP. If a master agreement exists between the parties to govern the supply of Goods and Services identified in the PO, the terms and conditions of the master agreement shall apply to such Goods and Services. If the PO is construed as an acceptance of an offer by Supplier, this acceptance is expressly conditioned on Supplier’s assent to any additional or different terms contained herein. If the PO is construed as a confirmation of an existing contract, the parties agree that these terms and conditions constitute the final, complete and exclusive terms and conditions of the contract between the parties.

Purchaser may issue Change Orders (i.e. alter, amend, omit, add to or otherwise change the PO or any parts thereof) to Supplier, and Supplier shall carry out such Change Orders. If any Change Order cause an increase or decrease of costs, or the time required for the performance of, any Services or Goods, an equitable adjustment shall be made in the purchase price and/or delivery schedule in writing. Any Supplier claim for adjustment under this clause will be deemed waived unless asserted within seven (7) calendar days from Supplier’s receipt of the Change Order. Change Orders requested by Supplier only become effective after written confirmation by Purchaser.

 

Goods and Services

Unless more specified in the PO, Supplier shall deliver the Goods and Services at the locations and by the delivery dates set forth in the PO. Supplier shall use qualified personnel and equipment and facilities that meet the highest standards as customary in the respective branch or industry. Supplier shall comply with all relevant legislation, regulations, labor laws, immigration laws, import-export regulations and environmental and industry standards in all jurisdictions, where Supplier operates, and the Goods and Services are supplied. Supplier shall maintain records and provide regular reports pursuant to Purchaser’s instructions on the delivery of the Goods and Services, their conformity with the service levels and specifications identified to Supplier. Supplier shall supply in printed form all relevant product safety and health information that pertains to all Goods ordered hereunder. Supplier must ensure that Goods comply with certification standards.

If statutory provisions for the protection of consumers, employees or the environment provide for the marking, the preparation and issuance of declarations of conformity, of declarations of compliance, of operating and mounting instructions, et cetera, Supplier shall prepare and issue the said accordingly.

Supplier shall keep available spare parts for a period of at least 10 years after the delivery. The spare parts shall be supplied at serial price.

 

Delivery

The delivery term set forth in the respective purchase order shall be construed in accordance with the respective applicable Incoterms. Partial deliveries shall require our previous approval. The packaging shall be in accordance with environmental and transport requirements; the packaging and filling material has to be homogeneous and recyclable.

Supplier shall provide Purchaser with a detailed dispatch note separately on the day of shipment. The consignment shall be accompanied by a delivery note containing all order data as well as data on gross and net weight. The Goods will be stored at Supplier’s cost and risk case that shipping documents are missing. Taking over the Goods at the place of delivery shall not be deemed an acceptance thereof. Unless otherwise agreed, the proper disposal of packing materials shall be the responsibility of Supplier.

In case of deliveries originating in a country outside of the EU, the shipping bill shall be provided free of charge with a customs invoice (in duplicate) as well as a certificate of origin (declaration of origin, movement certificate, et cetera) for favored import customs clearance. Supplier shall also issue a “Supplier’s Declarations” for products in accordance with the relevant Council Regulations (EC). In case of use of long-term supplier declarations, Supplier shall notify Purchaser unsolicited in case of any changes of the originating status.

Supplier shall issue storage and standards for the operation of the Goods together with the shipment, otherwise, Supplier shall indemnify Purchaser from any damage incurred due to the lack of knowledge of said documents.

In case that the purchased Goods are intended for further processing, incorporation in or mixing with other goods, and such intended use is prevented by unforeseeable circumstances, Purchaser shall have the right to cancel any Agreement in whole or in part for convenience. Purchaser will notify Supplier of such circumstance without undue delay. Supplier shall refund any payments received for the Goods (exclusive of transportation costs) against re-shipment of the Goods. No further compensation will be due to Supplier.

Upon arrival of the Goods, Purchaser shall carry out an inspection only in order to evaluate the identity, quantity and obvious damages in transit. Purchaser shall not be required to carry out any further inspection until the Goods are ready for processing, incorporation in or mixing with other goods as intended. In any case, Purchaser will examine the Goods only and to the extent that this is, within Purchaser’s reasonable judgement, practicable.

 

Delivery Time

Time is of the essence. Dates of delivery must be strictly observed. It is in Purchaser’s sole discretion to accept deliveries prior to the delivery date specified in the purchase order or not. In case of late performance by Supplier of any of its obligations under the respective Agreement (excluding delays solely attributable to Purchaser and Force Majeure as defined herein), Supplier shall pay to Purchaser a contractual penalty (the “Penalty”) amounting to one per cent (1%) of the Contract Price for each day of the delay, however not exceeding ten per cent (5%) of the order value. Purchaser shall be entitled to set off and to deduct the Penalty from any amounts payable to Supplier. The Penalty shall accrue irrespective of the existence and extent of actual damages.

If Supplier becomes aware of a possible impediment of the performance of its contractual obligations, Supplier shall notify Purchaser without undue delay. If Supplier fails to do so, it will be conclusively presumed that Supplier is responsible for such delay and Purchaser will be, without limiting its other rights and remedies he may have hereunder or at law, entitled to cancel the Agreement with immediate effect.

In consideration of the Covid-19 pandemics, Supplier understands and confirms that the agreed upon delivery dates are realistic and feasible.

 

Prices

Except as expressly otherwise agreed, the prices shall be considered inclusive of all duties, customs and incidental expenses; incidental expenses shall include (but not be limited to) the costs for packaging, loading, transport and the procurement of export and import permits. Unless otherwise agreed, the prices shall also include the redemption and correct recycling and disposal in keeping with the manufacturer's obligation of redemption and disposal, in particular of old electrical and electronic devices.

Prices shall always be considered fixed prices. Escalator clauses and the like are not acceptable, neither will price changes due to Covid-19 pandemic be accepted.

 

Quality Assurance

Supplier shall ensure and demonstrate on demand that it has all appropriate corporate social responsibility policies and has satisfied all applicable legal requirements, regarding (i) health and safety; (ii) conservation of the environment, rectification of environmental damage and shall have an environmental sustainability policy satisfactory to Purchaser; (iii) treatment of workforce including non-discrimination and equal opportunities; (iv) practice of fair trade; and (v) quality assurance systems for Goods and Services as customary in Supplier’s industry. 

To the extent required, Supplier warrants that it, and all sub-suppliers of substances used in relation to the Goods, complies with the REACH Regulation (EU Regulation on Registration, Evaluation, Authorization and Restriction of Chemicals (EC 1907/2006), CLP Regulation (EU CLP Regulation (EC 1272/2008) and any other chemical compliance rules and regulations relevant for the Goods.

Purchaser reserves the right to carry out a system, process or product audit at Suppliers production plant without prior notification during normal business hours. Purchaser may demand that not-primary materials, the Goods or any part thereof, which are procured from sub-suppliers, are included in the quality assurance system of Supplier. In this case, Supplier shall ensure that the audits mentioned hereinbefore can be carried out at the sub-supplier’s production plants as well.

 

Warranties

Supplier expressly warrants that: (i) Goods delivered hereunder will be free from defects in material and workmanship and of the quality, size and dimensions ordered and will remain free of defects for a period of at least 30 months after acceptance (ii) Services performed hereunder will conform to the description in the relevant PO, statement of work and any other written specifications agreed between the Parties, as well as to any other instructions and requirements indicated by Purchaser in writing.

Supplier further represents and warrants that: (i) it is duly organized or incorporated in the relevant jurisdictions and has full capacity to enter into the relevant Agreement and perform its obligations thereunder; (ii) no hardware or software or other material used in the supply of the Goods and Services nor the use thereof infringes any intellectual property rights or liens of any third party; (iii) Supplier holds all right, title and interest in the Goods and Services; and (iv) that it operates in compliance with all laws and regulations; and (v) the Agreement does not violate any other agreement binding on Supplier.

Any Goods or Services that do not comply with this warranty shall, at Purchaser’s option either be replaced or repaired by Supplier or returned by Purchaser for refund by Supplier. Supplier agrees to defend, indemnify and hold harmless, at its own cost, Purchaser and its affiliates against any claim, demand, loss, damage, liability or expense that result from Supplier’s non-conformance with the specifications or warranties, and shall include Supplier’s obligation to compensate Purchaser for any costs incurred in connection with the disassembly and assembly, transport, travelling, work and material as well as any other reasonable costs for determination and rectifying the defective Goods.

Quantities and weights of the Goods delivered hereunder will be determined by Purchaser at the place of delivery. In case of excess deliveries, Purchaser reserves the right to return such excess at Supplier’s cost and risk.

These warranties are in addition to all other warranties specified in the Agreement or implied by law, and will survive termination of the Agreement, and inspection, delivery and/or acceptance of, and payment by Purchaser for, the Goods and Services.

 

Invoicing

Supplier shall submit invoices either in hard-copy to Purchaser’s registered office or via email. All invoices must be itemized and must reference the Agreement or PO number and shall contain all order and delivery data, the value-added tax registration number (VAT Reg. No.) as well as the ARA license number, if and when applicable. Purchaser will not pay cartage, packaging or boxing expenses, unless specified in the Agreement. If the parties agreed upon a settlement on a time and material basis, Supplier shall attach the respective time sheets to the invoice. Invoices which infringe public-law provisions (in particular those rendered in the Austrian customs and tax acts) shall be considered not submitted.

Payment terms, including cash discount periods, shall not start to run before receipt of the respective invoice. The payment shall not indicate the acknowledgement of the correctness of Goods and Services, and thus it does not operate as a waiver of any of Purchaser’s rights and remedies, it may have hereunder or at law. Purchaser shall have the right to offset and deduct any amounts resulting from counterclaims towards the supplier or any of its affiliated companies from the payment of any due amounts. The assignment of payment claims shall be permitted only with Purchaser’s previous written consent.

 

Transfer of title and ownership

The risk as to price and performance as well as the title in the Goods shall pass to Purchaser in accordance with the applicable Incoterm. However, if the Agreement provides for a formal acceptance, the aforementioned risks shall not pass prior to such acceptance. Unless otherwise agreed, the place of risk-transfer shall also determine the place of performance.

If the PO provides for Supplier to perform any design, engineering, analytical or similar work or provides for the delivery of any software, firmware, copyrightable materials or derivative works thereof specifically made for Purchaser, all such work and deliverables shall constitute “works made for hire”, and all right, title and interest that Supplier has in and to any patentable invention, know‐how and trade secrets, copyrightable materials and derivative works thereof that Supplier shall conceive, originate or reduce to practice, either individually or jointly with others, in connection with its performance of a PO are hereby assigned to Purchaser and shall be Purchaser’s sole and exclusive property.

 

Insurance and Liability

Supplier shall maintain Comprehensive General Liability with an insurer acceptable to Purchaser, in an amount (in the currency set forth in the PO) of no less than five million Euros (€ 5,000,000) per occurrence, for damage to or destruction of property (including loss of use), including products and completed operations coverage and contractual liability, or a combined single limit of five million Euros (€ 5,000,000) for bodily injury including death. Supplier shall name Purchaser as an additional insured and provide a certificate of insurance. Any deductible or self-insurance shall be of a level acceptable to Purchaser.

In case that the Agreement provides for an Incoterm that imposes on Supplier the transportation risk and/or obligation to carry out appropriate insurance, Supplier shall provide such insurance coverage and issue to Purchaser a certificate of insurance.

Except as otherwise provided herein, Supplier´s liability shall be subject to the applicable law. Supplier shall neither disclaim nor limit his legal liability towards Purchaser. Supplier shall be liable for the fault of its sub-contractors or his suppliers as if it was its own fault. Supplier shall be liable for defective products regardless of fault or negligence, if and to the extent that such a (strict) liability is provided by the applicable law.

 

Applicable Law, Jurisdiction

These GCP, any PO, and all acts or omissions of the parties related to these GCP or any PO shall be governed exclusively by the substantive laws of Austria, without regard to its or any other jurisdiction's conflicts of laws principles that may cause the law of another jurisdiction to govern. Any dispute arising from these GTC, any PO, or any act or omission of either party related to these GTC or any PO may only be brought in the ordinary courts of Wels, Austria, and each party hereby irrevocably consents and submits to the exclusive jurisdiction of these courts. Independent thereof, Purchaser shall be permitted to bring action against Supplier at the competent court of law at his place of business.

 

Confidentiality

In addition to (and not in lieu of) any Non-Disclosure-Agreement, the parties may have signed before the PO-date, each party agrees to keep confidential and to prevent the unauthorized disclosure of information disclosed by the other party, which is confidential by its nature including without limitation technical, commercial, financial, marketing, operational or strategic information related to the business of a party, on any verbal, visual or written medium, whether it is marked confidential or restricted or not (“Confidential Information”). The party receiving Confidential Information from the other party shall protect it from unauthorized disclosure to third parties by using the same degree of care that it uses for its own confidential information, but no less than commercially reasonable efforts.

Neither party shall use the other party’s Confidential Information for any other purposes than for the execution of the Agreement, nor reproduce the Confidential Information in whole or in part in any form except as may be required by the Agreement.

 

Compliance and Business Ethics

Prerequisite for any business cooperation shall be the unreserved compliance with our Code of Compliance as amended from time to time (available at the Website of the Salinen Austria AG) as well as compliance with all relevant laws, regulations, directives, and similar rules with regards to our Code of Compliance. Any breach of the obligations set forth in this Section shall be regarded as a material breach of contract, which shall entitle Salzwelten GmbH to terminate all purchase agreements not yet fulfilled with immediate effect and claim for all damages and losses incurred by such breach.
 

Exportcontrol and Compliance Screening

Supplier undertakes to inform Salzwelten GmbH separately in writing if provided Goods or Services (including software and technology) are subject to export controls according to EU- US- or the national export control laws of the exporting country and included in export control lists. Supplier shall inform Salzwelten GmbH immediately in case of any changes regarding licensing requirements of provided Goods or Services based on technical or legal changes, or based on official decisions. Supplier undertakes to comply with all applicable export control regulations applicable to all contractual deliveries and/or services as well as their export and/or re-export. In addition, Supplier undertakes to comply with all EU- and US-sanctions regulations and to check its business partners and suppliers against current UN-, EU- and US-sanctions lists. Any violation of these export control provisions shall entitle Salzwelten GmbH to immediately terminate all existing contracts with Supplier due to significant grounds. Moreover, if Supplier is listed on an UN- EU- or US sanctions list, Salzwelten GmbH reserves the right to terminate all business relations, payment flows and performance with immediate effect. Furthermore, in the event of infringement of any of these compliance provisions, Supplier shall hold harmless, defend and indemnify Salzwelten GmbH from and against any and all resulting damages and claims.

 

Force Majeure

If Supplier is unable to produce, sell or deliver any Goods or Services covered by the PO, or Purchaser is unable to accept delivery of any Goods or Services covered by the PO, as a result of an event or occurrence beyond the reasonable control of the affected party and without such party’s fault or negligence, then any delay or failure to perform under the respective Agreement that results from such event or occurrence will be excused for so long as such event or occurrence continues; provided, however, that the affected party gives written notice of each such delay (including the anticipated duration of the delay) to the other party as soon as possible after the event or occurrence (but in no event more than a week thereafter). Such events and occurrences may include, by way of example and not limitation, natural disasters, fires, floods, windstorms, severe weather, explosions, riots, wars, sabotage, labor problems (including lockouts, strikes and slowdowns) and power failures. If any such delay lasts more than thirty (30) days, the non-affected party may terminate the Agreement without any liability to the affected party.

 

Miscellaneous

This version is not a translation of the German version of Purchaser’s GCP and some Sections might deviate from the German version significantly.

Except as otherwise provided herein, any and all remedies herein expressly conferred upon a party will be deemed cumulative with and not exclusive of any other remedy conferred hereby, or by law upon such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.

Any clause which by its nature should survive termination will do so, including without limitation the Confidentiality, Liability, Indemnification and Warranty clauses. The non-exercise by a party of a right hereunder does not constitute a waiver of such right.

Nothing herein shall be interpreted to create an exclusivity in favor of Supplier unless otherwise expressly set out in the PO.

The Agreement shall not be assigned in whole or in part by Supplier nor shall Supplier subcontract any part of the Agreement without Purchaser’s prior written consent.

If any provision herein is held to be invalid or unenforceable, such provision shall be narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. If any clause is unenforceable it shall be severed and the other clauses will remain in full force.

Except as otherwise defined herein, references to a communication in writing shall include e-mail and electronic messages accessible and printable by commonly used software applications. The burden of proof regarding the actual reception of an electronic message lies on the sender of such message. Messages which reach Purchaser on Saturdays, Sundays or one of Purchaser’s legal public holidays shall become effective only on the next working day.

Supplier shall not use Purchaser’s name for the purposes of advertising, press releases, promotion or solicitation without Purchaser’s prior written consent.

These GCP may be updated by Purchaser from time to time and Supplier commits to review them regularly and be bound by the GCP.

 

Annex 1 - Specific conditions for project work ("Specific Conditions")

 

A.     SCOPE

In addition to the GCP above, the provisions of these Specific Conditions shall apply to any Work (as hereinafter defined). In case of inconsistencies between the provisions contained in the GCP and those of these Specific Conditions, the latter shall prevail.

 

B.     DEFINITIONS

• “Agreement” means the mutual understanding between Purchaser and Supplier about their rights and duties regarding the Work and the consideration, in any instrument recorded whatsoever.
• “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work) to be delivered on or before the Delivery Date.
• “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
•  “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
•  “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or Purchaser created before the date of this Purchase Order or outside the scope of this Purchase Order.
• “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.
• “Services” means the services that Supplier is to perform for Purchaser specified in the Purchase Order.
• “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for Purchaser.
• “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier.
• “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
• “Work” means the Deliverables, Products, and Services specified in a contract or Purchase Order, including any SOW.

 

C.     SCOPE OF PERFORMANCE AND SCHEDULING

Scope, detailed content and organizational parameters of the project will be exclusively subject to the respective Agreement including any Annexes thereto. Changes to and alterations of the scope and content of the Work are subject to a Change Order (as defined below).

The parties shall mutually define a project- and milestone-plan for the project work and each party shall nominate a project manager.

Unless otherwise agreed, the parties shall collaborate on detailing and specifying the Work and the respective framework conditions before executing the contract, which shall result in a statement of work (SOW).

The SOW shall be prepared by Supplier considering Purchaser’s expressed (and implied) particular expectations, requirements and needs, if any, and shall include (but not be limited to) the purpose of the project, scope of work, project objectives, schedule, tasks, deliverables, applicable standards, acceptance criteria, payment of the project, expected outcomes and other special requirements, if any.

The SOW shall constitute the final agreement on the project (including the terms herein) and come into force and effect when (i) both parties have signed the SOW and/or (ii) Purchaser issues a respective Purchase Order referring to the SOW. For the avoidance of doubt, Supplier will not receive a remuneration for any Work produced or other precontractual efforts made prior to the effective date of the SOW, unless otherwise agreed by the parties to the contrary in writing.

 

D.     DELIVERY AND DELAY

Time is of the essence. Supplier will immediately notify Purchaser if Supplier’s timely performance is delayed or is likely to be delayed. Purchaser’s acceptance of Supplier’s notice will not constitute Purchaser’s waiver of any of Supplier’s obligations.

In any case of a delay or where a delay may reasonably be anticipated, Purchaser shall have the right, without prejudice to any other right or remedy, after having granted Supplier an additional time of reasonable length for the performance of its obligations, to either terminate the Agreement or respective SOW in whole or in part, or to correct such failure or have such failure corrected by a third party at Supplier’s expense (the “Substitute Performance”) and to deduct from any amounts payable to Supplier any costs incurred thereby. Such Substitute Performance shall not relieve Supplier from its contractual obligations and Supplier shall always cooperate with Purchaser, provide support, codes, documentation and whatever needed and shall, to the extent required, grant Purchaser a royalty free, non-exclusive, worldwide license to carry out the Substitute Performance or to authorize third parties to do so on Purchaser’s behalf.

 

E.     OWNERSHIP AND LICENSE

Unless otherwise specified in a SOW and except as provided in the paragraph below, Purchaser is the sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to Purchaser all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.

Unless otherwise specified in a SOW, each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier hereby grants Purchaser a perpetual, irrevocable, worldwide, transferable, royalty-free, non-exclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier’s Preexisting Materials in the Deliverables to the extent necessary for Purchaser’s exercise and use of its rights in the Deliverables.

Unless otherwise specified in a SOW, Supplier will obtain and assign to Purchaser a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to Purchaser upon Purchaser’s request.

 

F.     INSPECTION AND ACCEPTANCE

Purchaser may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At Purchaser’s option, Purchaser may (i) return the nonconforming Work to Supplier for a refund or credit, (ii) require Supplier to replace the non-conforming Work, or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), Purchaser may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount Purchaser reasonably determines to represent the diminished value of the non-conforming Work. Purchaser’s payment to Supplier for Work prior to Purchaser’s timely rejection of such Work as nonconforming will not be deemed as acceptance by Purchaser.

 

G.     CHANGES

As used in this Section, “Change” means a change Purchaser directs or causes within the general scope of this Agreement, the applicable SOW, or both.

Purchaser, by written order (“Change Order”), may make Changes in accordance with this Section.

If Supplier asserts that Purchaser has directed or caused a Change to the cost of or time for performance for which Purchaser has not issued a Change Order, Supplier will promptly notify Purchaser in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change, (ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work, and (iii) a date no less than 14 days from the date of notice by which Purchaser must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged. Purchaser will evaluate Supplier’s notice of Change in good faith, and if Purchaser agrees that it has made a constructive change, Purchaser will issue a Change Order to Supplier.

Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 7 days of receiving a Change Order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.

The parties shall negotiate an amendment to the applicable SOW to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both.

Supplier will proceed with the Changed Work as directed, notwithstanding that the parties have not negotiated the amendment to this Agreement or the applicable SOW to incorporate the equitable adjustment.

 

H.     REPRESENTATIONS AND WARRANTIES

Supplier represents and warrants that:

i.   it has the full power to enter into the Agreement and to perform its obligations under the Agreement;

ii.  it has the right and unrestricted ability to assign the Work to Purchaser including, without limitation, the right to assign any Work performed by Supplier’s employees, consultants, agents, independent contractors, and Subcontractors;

iii.  the Work, and Purchaser’s use of the Work, do not and will not infringe upon any Third Party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory, or common law; and

iv.  Supplier’s Work conforms to Purchaser’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use.

 

I.      ASSIGNMENT AND SUBCONTRACTING

Supplier may not assign any of its rights or delegate any of its obligations under the Agreement / SOW without Purchaser’s prior written consent, which Purchaser will not unreasonably withhold. Purchaser may, at its option, void any attempted assignment or delegation undertaken without Purchaser’s prior written consent.

If Purchaser consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Purchaser for all damages and costs of any kind, incurred by Purchaser or any third party and caused by the acts and omissions of Supplier’s Subcontractors; and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, Purchaser will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify, and hold Purchaser harmless for all damages and costs of any kind, without limitation, incurred by Purchaser and caused by Supplier’s failure to pay a Subcontractor.

 

J.      TERM AND TERMINATION

The Agreement will remain in effect with respect to any SOW until such SOW is either terminated or the Work is completed and accepted.

Purchaser may terminate the Agreement, any SOW, or both at any time, for no reason or for any reason, upon 7 days written notice to Supplier. Upon receipt of notice of such termination, Supplier shall immediately stop all work hereunder and shall immediately cause any of its Subcontractors to cease such work and will inform Purchaser of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to Purchaser whatever Work then exists. Purchaser shall compensate Supplier for its actual costs and commitments to others, up to the date in which the cancellation request has been received and confirmed by Supplier provided that Purchaser will not be obligated to pay any more than the payment that would have become due had Supplier completed and Purchaser had accepted the Work. Purchaser will have no further payment obligation in connection with any termination.

Either party may terminate the Agreement, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency, or any similar proceedings; or (ii) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.

Purchaser may immediately terminate the Agreement upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.

Either party may terminate the Agreement, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 14 days of receipt of notice of the breach. Purchaser shall have no further payment obligation to Supplier under any terminated SOW if Purchaser terminates the SOW under this Section.

Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Agreement shall survive the expiration or termination of the Agreement.

 

K.     INDEMNIFICATION

As used in this Section, a “Claim” is any claim, demand, loss, damage, liability, cost, or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying party”) may be obligated to defend, indemnify, and hold the other party (the “Indemnified party”) harmless.

Supplier shall defend, indemnify, and hold Purchaser harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Work; or (ii) any infringement of a Third Party’s Intellectual Property Rights or any other rights.

Purchaser shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of Purchaser’s products or services in connection with the Work, (ii) Supplier’s use of information or materials provided to Supplier by Purchaser, or (iii) infringement a Third Party’s Intellectual Property Rights or any other rights resulting from Supplier’s adherence to Purchaser’s written instructions.

The Indemnified party will provide the Indemnifying party with prompt written notice of the Claim and permit the Indemnifying party to control the defense, settlement, adjustment, or compromise of any Claim.

If a third party enjoins or interferes with Purchaser’s use of any Work, then in addition to Supplier’s indemnifying obligations set out herein, Supplier will use its best efforts to (i) obtain any licenses necessary to permit Purchaser to continue to use the Work, (ii) replace or modify the Work as necessary to permit Purchaser to continue to use of the Work, or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to Purchaser the amount paid for any Work for which a third party enjoins or interferes with Purchaser’s use of the Work.

 

L.     CONFLICTS

If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:

(i)       A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.

(ii)      A conflict between the terms of the Purchase Order and those set forth in a SOW will be resolved in favor of the SOW.

(iii)     A conflict between the terms of an exhibit or hyperlink and those set forth in a SOW will be resolved in favor of the SOW.

Version: 2022-08-22