Purchase Order Terms and Conditions
In these conditions:
- "Buyer": "SupplyPro Inc." and its subsidiaries and affiliates and any company these companies are controlled by or under common control with. "Supplier" means the person, firm or company named as such in the Order as responsible for supplying the Goods and /or Services and includes the Supplier’s legal representatives, successors and permitted assigns.
- "The Goods and Services": means respectively the goods and services or any of them described in the Order, "Order" means the order, including any written amendments of the delivery of Goods and/or the provision of Services as set out overleaf together with these conditions.
- "The Price": means the price of the Goods and/or Services as set out in the Order.
- "The terms" are the rules by which both parties agree to abide to.
Supplier and SupplyPro, Inc. ("Buyer"
) agree to be bound by the terms and conditions contained herein (the "Terms"
) which are automatically incorporated into, and essential to, each purchase order issued to Seller by Buyer (the purchase order and the Terms are referred to as the "Order") and should be carefully read. Seller agrees to follow the shipping, invoicing and billing instructions issued by the Buyer.
- ACCEPTANCE OF ORDERS: Each Order is accepted by the Supplier returning to the Buyer a signed copy of the Order, (b) otherwise acknowledging Seller’s acceptance of the Order in writing (including email and pdf), or (c) commencing or promising shipment of the Ordered goods and services in accordance with the Order and these Terms. Seller’s acceptance of each Order by acknowledgment, shipment, or other performance will be unqualified, unconditional and subject to and expressly limited to these Terms. All previous offers by Seller are hereby rejected. Buyer will not be bound by terms additional to or different from these Terms that may appear in Seller’s quotations, acknowledgment, invoices, or in any other communications from Seller. Acceptance of materials, work or services, or payment by Buyer, or any inaction on the part of Buyer, shall not constitute Buyer’s consent to or acceptance of any such terms, additional or different terms inserted in this Agreement by seller, or deletions thereto, whether by alteration, addenda, or otherwise, and any such additional or different terms will be of no force and effect, unless expressly consented to by Buyer in writing. The price set forth in each Order includes the cost of manufacturing (if applicable), packaging, labeling and shipping unless otherwise specified in the Order. Upon Seller’s acceptance of the Order, the Terms of each Order will constitute the entire agreement between Seller and Buyer with respect to the subject matter of the Order, superseding all contemporaneous oral agreements and prior oral and written quotations, communications, agreements and understanding of the parties, and may not be modified or rescinded except by a writing signed by Supplier and Buyer.
- TERMINATION FOR CAUSE: Buyer reserves the right to terminate with immediate effect, any Order or any part thereof, for cause in the event of any default by the Supplier at any time prior to completion or in the event Supplier breaches or fails to perform any of its obligations in any material respect, or in the event Supplier becomes insolvent or proceedings are instituted by or against Supplier under any federal or state bankruptcy or insolvency law or Seller ceases to operate in the normal course of business. Supplier agrees not to charge or assess any form of termination charges or restocking fees upon Buyer due to the termination of any Order in whole or part. Supplier agrees not to require Buyer to purchase any terminated items not completed and/or items ready to be delivered at the time written notice of termination is mailed to Seller. Further, no claims will be made for anticipatory profits or other damages resulting from termination of any Order, in whole or part. Where such termination is through the fault of Seller, Buyer, at its option, and without waiving any of its rights to recover damages or losses sustained, may accept the completed portion of an Order and pay for the same at the contract price, or may place the entire Order elsewhere and charge Seller the difference in the cost thereof to Buyer.
- TERMINATION FOR CONVENIENCE OF BUYER: Buyer reserves the right to terminate an Order, in whole or part, for its sole convenience. In the event of such termination, Supplier will immediately stop all work on the Order, and will immediately cause any of its suppliers or subcontractors to cease such work. Seller will not be paid for any work done after receipt of the notice of the termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided.
- CONFIDENTIALITY AND ADVERTISING: Supplier shall consider all information furnished by Buyer to be proprietary and confidential information of Buyer. Supplier shall not disclose any such information to any other entity or person, or use such information itself for any purpose other than performing pursuant to an Order unless Supplier first obtains the written consent of Buyer. Supplier shall safeguard Buyer’s information with at least the same degree of care (which shall always be at least a reasonable amount of care) that it uses to safeguard its own confidential, proprietary, and trade secret information. Supplier shall promptly return or destroy Buyer’s information upon the expiration or termination of the Order or otherwise upon Owner’s written request. Seller will not in any manner advertise or publish the fact that Supplier has furnished or contracted to furnish to Buyer the goods or services herein mentioned, nor will any information relating to the Order be disclosed without Buyer’s written permission. Supplier will make no use of any identification of Buyer, or its affiliated companies in its advertising or promotional efforts in reference to activities undertaken by Seller under any Order without Buyer’s prior written consent. The term "identification" includes any trade name, trademark, service mark, insignia, symbol, or any simulation thereof, and any code, drawing, specification, or evidence of Buyer's inspection. The terms of this Section shall survive the termination or expiration of an Order.
- USE OF INFORMATION: Any specifications, drawings, sketches, models, samples, tools, computer or other apparatus, programs, technical or business information or data, written, oral or otherwise, owned or controlled by Buyer ("Information") furnished to or acquired by Supplier under an Order, or in contemplation of an Order, will remain Buyer’s property, is confidential information of Buyer, and shall be handled according to the confidentiality provisions of Section 4 hereof. All copies of such Information in written, graphic or other tangible form shall, upon Buyer’s request, be returned to Buyer or destroyed at Buyer’s option. Unless such Information was previously known to Seller free of any obligation to keep it confidential, or has been or is subsequently made public by Buyer or a third party, it will be kept confidential by Supplier, will be used only in performing under an Order and may not be used for other purposes except upon such terms as may be agreed upon between Supplier and Buyer in writing.
- ASSIGNMENT AND SUBCONTRACTING: Supplier may not assign an Order, or any portion thereof, except that Seller may, upon the prior written consent of Buyer, assign claims for monies due or to become due under an Order, provided that, in such event Supplier will supply Buyer promptly with two copies of any such assignment, and provided further, that payment to any claim will be subject to set off or recoupment for any present or future claim or claims where Buyer may have against Supplier. Supplier agrees to obtain Buyer’s written approval before subcontracting an Order or any portion thereof; provided however that this limitation will not apply to the purchase of standard commercial supplies or raw materials. Any attempted assignment or delegation in contravention of the above provisions will be void and ineffective.
- BUYER-OWNED OR FURNISHED MATERIAL: Supplier assumes complete liability for any Buyer-owned, Buyer-owed or Buyer-furnished tooling, articles and materials, unless furnished to Supplier on a charge basis, in connection with an Order and Supplier agrees to pay for all such tooling, articles and materials spoiled by it or not otherwise satisfactorily accounted for. Title to the aforesaid Buyer-owned or Buyer-furnished tooling, articles or materials will at all times remain with Buyer. Supplier is and will be an express trustee for the benefit of Buyer of all such tooling, articles and materials.
- BREACH OF CONTRACT: Supplier will be in breach of the Terms of any Order if Supplier fails to make delivery as called for in an Order, or Supplier fails to perform any of Supplier’s covenants and obligations set forth in an Order or should any warranty of Supplier prove to be false or in the event of any of the following: a) insolvency of Supplier, b) Supplier’s filing of a voluntary petition in bankruptcy; c) filing of an involuntary petition to have Supplier declared bankrupt; d) the appointment of a receiver or trustee for Supplier’s assets; e) the execution by Supplier of an assignment for the benefit of creditors of Buyer. The remedies provided in this section will be in addition to any other remedies provided in this section and will be in addition to any other remedies provided in law or equity.
- ATTORNEYS’ FEES: By the acceptance of any Order, Supplier agrees that in the event that Buyer becomes a party to any action arising out of, from or as the result of or predicated upon an Order, Supplier will pay to Buyer its reasonable attorneys’ fees and court costs incurred in connection therewith.
- GOVERNING LAW AND JURISDICTION: The contract created by an Order will be construed and enforced under the laws of the State of California, County of San Diego. Supplier hereby consents to the exclusive application of the laws of the State of California without regard to conflicts of laws. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply in any respect to any Order. Any legal suit, action or proceeding arising out of or relating to an Order must be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- COMPLIANCE WITH LAWS: Seller and all persons furnished by Supplier will comply at their own expense with all applicable federal, state, local and foreign law, ordinances, regulations and codes, including the identification and procurement of required permits, certificates, licenses, insurance, approvals and inspections in performance under an Order. Supplier agrees to indemnify Buyer and its customers for any loss or damage that may be sustained by reason of any failure to do so. By acceptance of an Order, Supplier certifies that the materials and articles Ordered will be produced in compliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended, and lawful regulations and orders of the Administration of the Wage and Hour Division and the Labor Management Relations Act. Suppler will comply with all export and import laws of all countries involved in the sale of goods under any Order. Supplier assumes all responsibility for shipments of goods requiring any government import clearance. Buyer may terminate any Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the goods.
- DEDUCTION AND SETOFF: Any sums payable to Supplier will be subject to all claims and defenses of Buyer and Buyer may setoff and deduct against any such sums, all present and future indebtedness of Seller to Buyer. Buyer will provide a copy of the deduction taken by Buyer against Supplier’s account as a result of any returns or adjustments. Supplier will be deemed to have accepted each such deduction unless Supplier, within 90 days following receipt of the deduction voucher, notifies Buyer in writing as to why deductions should not be made and provides documentation for the reason given.
- FORCE MAJEURE: Neither party will be liable to the other party for any delay or non-performance by reason of act of God, fire, explosion, flood, windstorm, earthquake, trade embargoes, governmental regulations, war, civil unrest, or any other cause beyond such party’s reasonable control (a "Force Majeure Event"). The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of a Force Majeure Event. If any Force Majeure Event occurs, the party delayed or unable to perform will give immediate notice to the other party, stating the nature of the Force Majeure Event condition and any action being taken to avoid or minimize its effect, and the party affected by the other’s delay or inability to perform may elect to: (a) suspend the Order, in whole or part, for the duration of the Force Majeure Event condition and (b) at its option buy, sell, obtain or furnish elsewhere material or services to be bought, sold, obtained or furnished under an Order (unless such sale or furnishing is prohibited under an Order) and deduct from any commitment the quantity bought, sold, obtained or furnished for which commitments have been made elsewhere and (c) once the Force Majeure Event condition ceases, resume performance under the Order with an option in the affected party to extend the period of the Order up to the length of time the Force Majeure Condition endured, and/or (d) when the delay or non-performance continues for a period of at least 15 days, terminate, at no charge, the Order or the part of it relating to material not already shipped, or services not already performed. Unless written notice is given within 45 days after the affected party is notified of the Force Majeure Event, option (d) above will be deemed selected.
- IMPLEADER: Supplier will not implead or bring an action against Buyer or its customers or the employees of either based on any claim by any person for personal injury or death due to any action or omission of an employee of Buyer or its customers occurring in the course or scope of employment and that arises out of material or services furnished under an Order.
- INFRINGEMENT: The following terms apply to any infringement, or claim of infringement, of any patent, trademark, copyright, trade secret or other proprietary interest based on the manufacture, installation, normal use, lease or sale of any equipment, program, documentation, service or material ("Material") furnished to Buyer under an Order or in contemplation of the Order. Supplier will indemnify Buyer and its customers for any loss, damage, expense or liability that may result by reason of such infringement or claim, except where such infringement or claim arises solely from Seller’s adherence to Buyer’s written instructions or directions which involve the use of Material other than (a) commercial material which is available on the open market or is the same as such Material, or (b) Material of Seller’s origin, design or selection: and Buyer will so indemnify Supplier in such excepted cases. Each party will defend or settle, at its own expense, any action or suit against the other for which it is responsible under this clause. Each party will notify the other promptly of any claim of infringement for which the other is responsible, and will cooperate with the other in every reasonable way to facilitate the defense of any such claim.
- PRICES; INVOICING: An Order must not be filled at higher prices than shown on the Order, and, accordingly, prices on invoices shall be no greater than the prices reflected on the Order, unless otherwise agreed in writing by Buyer. Supplier warrants prices in the Order are as low as any (net) price given by Supplier to any other similar customer for like material. Supplier will give Buyer benefit of any price declines prior to date of shipment. Invoices shall be denominated in U.S. Dollars and shall be net amounts, exclusive of all taxes, value-added taxes, fees, duties or government charges, however designated, and all such taxes or duties shall be paid by Seller. All risk of currency fluctuations shall be on Supplier. Supplier shall (a) render single invoices, or as otherwise specified in an Order, showing Order number, (b) render separate invoices for each shipment within 24 hours after shipment, and (c) mail invoices to the address shown on the Order. Copies of bills of lading and shipping notice are to accompany all product/materials. If prepayment of transportation charges is authorized, Seller will include the transportation charges as a separate item on the invoice stating the name of the carrier used. No minimum billing charges are permitted unless expressly authorized in the Order.
- INSURANCE: If and when requested by Buyer, Supplier agrees to procure, at Supplier’s sole cost and expense, a policy or policies of insurance in form satisfactory to the Buyer wherein Buyer will be named an additional insured, insuring all property on Seller’s premises owned by Buyer against loss or damage resulting from fire (including extended coverage), malicious mischief and vandalism. Satisfactory evidence of procurement and existence in full force and effect of such insurance will be submitted to Buyer prior to the first shipment of goods and thereafter, upon request by Buyer. Supplier will obtain adequate insurance to cover its liability under each Order and will provide copies of the applicable certificate(s) of insurance naming Buyer as an additional insured, prior to the first shipment of goods and thereafter, upon request of Buyer. Supplier agrees that Supplier, Supplier’s insurance(s) and anyone claimed by, under or in Supplier’s behalf will have no claim, right of action or right of subrogation against Buyer and its customers based on any loss or liability insured against under the foregoing insurance. Supplier and Supplier’s subcontractors will furnish prior to the start of work certificates or adequate proof of the foregoing insurance including, if specifically requested by Buyer, copies of the endorsements and insurance policies. Buyer shall be notified in writing at least 30 days prior to cancellation of or any change in the policy.
- DELIVERY, PACKAGING AND TRANSPORTATION: The delivery of the Goods are as specified in the Order. If goods are not delivered in accordance the Order, the Buyer reserves the right, without liability, in addition to its other rights and remedies, to cancel the entire Order or part of the Order not delivered. The supplier shall be responsible for additional expenses to handle and deliver Goods in an expedited manner. Early execution of the Order or part thereof as well as partial deliveries shall not be permitted unless approved in writing by Buyer, The terms of delivery shall be interpreted in accordance with INCOTERMS 2010. Unless otherwise specified, goods are purchased F.O.B. destination. Deliveries will be made as specified, without charge for boxing, crating, storage, printing (of assembly or installation instructions, for example) or any other charges unless otherwise specified. Material will be suitably packed to assure against damage from transportation and weather and to secure lowest transportation costs in accordance with requirements of common carriers using commercial best practices. In the event that Supplier’s inadequate packaging results in the damage of the goods, Buyer will return the damaged goods to Supplier at Supplier’s cost and expense and Supplier will, at Buyer’s option either repair and return such damaged goods or replace such damaged goods with new goods. Buyer’s Order numbers and symbols must be plainly marked on all invoices, packages, bills of lading and shipping orders. A packing list shall accompany each box or package shipped showing Buyer’s Order number, item number and description of materials. Buyer’s count or weight will be final and conclusive on shipments not accompanied by a packing list. Shipping receipts or bills of lading shall be sent to Buyer on the date material is shipped. Invoices shall be mailed in original only to the attention of Buyer’s Accounting Department immediately after each shipment. Extra freight and/or cartage charges resulting from routing differing from Buyer’s instruction shall be charged to Supplier’s account. No substitutions of goods or services may be made without prior written authorization of Buyer. Supplier will make no package quantity change on any Order without written authorization of Buyer.
- OWNERSHIP, TITLE AND RISK: The title and risk pertaining to the Goods passes to the Buyer on acceptance of the Goods by Buyer in accordance with the Order. Without prejudice to any right of rejection which may accrue to SupplyPro under these Conditions or otherwise. The Supplier shall transfer to SupplyPro the ownership of all items such as models, die, molds, jigs, fixtures, tools, and drawings specifically acquired or manufactured by the Supplier for the execution of an Order immediately upon such items have been supplied to the supplier or when the manufacture of such items has been completed by the supplier, All items including all material and components that have been transferred to the supplier for the execution of an Order shall remain property of SupplyPro. The Supplier shall store such materials and components separately and shall clearly mark these items as property of SupplyPro. SupplyPro is at all times entitled to regain possession of such items, The Supplier shall not use such items on behalf of a third party nor will the Supplier allow third parties to use such items in connection with any purpose other than the execution of an Order. Upon receipt of any of the items referred above the Supplier shall check those for damage and fitness for the purpose for which they have been supplied and report its findings to Buyer. Any defects not reported to Buyer immediately after receipt of the item shall be charged to the Supplier’s account.
- PATENT INDEMNITY: Supplier on behalf of itself, its successors and assignees, warrants that the material and goods Ordered, unless made pursuant to specifications furnished by Buyer, do not and will not infringe any patents granted by the United States of America or any country foreign thereto, nor any trademark, or trade name, and Seller covenants and agrees to indemnify and hold harmless Buyer, its affiliates, its successors, assignees, customers and users of its products against any and all claims, demands, expenses and liabilities arising from or attributable to such infringement, and Supplier agrees to defend, at its own expense, and at no expense to Buyer, any such claims whether justified or unjustified or at the option of Buyer to permit Buyer to take over or assist Supplier in the defense thereof, and Supplier shall pay all reasonable attorneys’ fees, court costs and other expenses sustained by Buyer or its customers in defense thereof.
- PATENT RIGHTS: When payment is made for experimental, development, or research work, as such, to be performed in accordance with special requirements of Buyer, Supplier agrees to disclose and on request to assign to Buyer, each invention resulting therefrom. All proprietary rights embodied in design, tools, patterns, drawings, information, equipment, and schematics supplied by Buyer under an Order are reserved to Buyer and their use is restricted to the work to be performed hereunder. Seller will not disclose any details connected with an Order to any third party except as may be required to insure performance, without first obtaining the written consent of Buyer.
- RISK OF LOSS; ACCEPTANCE OF GOODS: Buyer will not be liable nor obligated to pay for goods shipped until (a) the goods are received at the "Ship To" location of Buyer indicated on the face hereof; (b) Buyer has had a reasonable opportunity to inspect the goods at the time and place of delivery; and (c) Buyer accepts the goods after inspection. Payment of an invoice does not constitute acceptance by Buyer and is without prejudice to any and all claims, at law or in equity that Buyer may have against Supplier. Owner may accept or reject any or all goods within a reasonable time after receipt. Acceptance of the goods shall in no way be a waiver of or impair Buyer’s right to reject or revoke its acceptance of nonconforming goods, or to avail itself of any other remedies to which Buyer may be entitled, notwithstanding Buyer’s knowledge of the nonconformity, its substantiality or ease of discovery.
- Supplier’s GENERAL INDEMNIFICATION OF BUYER: Seller will forever reimburse, indemnify, defend, and hold harmless, Buyer, its affiliates, its successors and assignees from and against any and all obligations, liabilities, actions, causes of action, losses, damages, penalties, including, but not limited to, claims of infringement of patents, copyrights, trademarks, unfair competition, bodily injury, property or other damages, arising out of any use, possession, consumption or sale of said goods or arising out of any breach of warranty, express or implied, on the part of the Supplier. If any goods or services are defective, unsuitable, incorrectly shipped, do not conform to all terms of the Order and all warranties implied by law, Buyer may, at its option, return the goods to Seller for full credit or refund of the purchase price and may charge Supplier such price and the cost of any incurred inbound and outbound freight and any reasonable handling, storage and inspection charge.
- STATEMENT OF ACCOUNT AND TERMS: Supplier shall, within three (3) days of Buyer’s request send a statement of account to Buyer’s Accounting Department. Delays in receiving statement or invoices, and also errors and omissions on a statement will be considered just cause for withholding settlement without losing any applicable discount privileges. Payment will be made in accordance with the terms on the face hereof, however if payment terms are left blank then Buyer will have 60 days from receipt of goods and services to make payment. Notwithstanding the foregoing, payment will be due only upon Supplier’s full and faithful performance in accordance with the terms and conditions of an Order. Payment may be made by business check, unless otherwise specified.
- TIME OF ESSENCE: Time is of the essence in any Order. The goods and services shall be delivered on or before the close of business on the day specified on the Order or according to the schedule thereon stated. Buyer will have the right to demand all of the goods or services at one time during the schedule period or in portions, as directed by Buyer, from time to time during that period. Supplier’s failure to meet any arrival date will constitute a material breach of the Order, as a result of which Buyer may terminate the Order.
- VARIATION IN QUANTITY: Buyer assumes no liability for goods or other materials (including written materials such as assembly or installation instructions) produced, processed or shipped in excess of the amount specified in an Order.
- CHANGES: Buyer may by written request make changes to specifications. Any difference in price or time for performance resulting from such change will be equitably adjusted and the request modified in writing accordingly.
- WARRANTY: Supplier represents and warrants that it shall have title to all of the goods furnished under an Order and the right to sell such goods. Seller represents and warrants that it has developed or obtained all of the rights and licenses necessary for such goods to conform to the Order and any related agreements as well as cover any reasonably anticipated use by Buyer and its customers of such goods. Unless otherwise specified herein, Supplier shall obtain and pay for all permits, governmental fees and licenses necessary for performance under an Order. Seller represents and warrants that the goods shipped will (a) be free of defects in design, workmanship and materials, including, without limitations, such defects as could create a hazard to life or property; (b) conform in all respects with all applicable federal, state, local and foreign laws, orders and regulations, including, but not limited to, those regarding occupational safety and health; (c) not infringe or encroach upon Buyer’s or any third party’s personal, contractual or proprietary rights, including patents, trademarks, copyrights, rights of privacy or trade secrets; (d) conform to all of Buyer’s specifications, if any, delivered to Seller, which may change from time to time. If Buyer was shown any sample of the goods, Supplier warrants that the goods shipped will be of equal or superior quality thereto. Seller represents and warrants that there are no pending, or to Supplier’s knowledge threatened, litigation involving or relating to the goods offered by Supplier. Seller will within three business days of Supplier ’s receipt of notice concerning nonconformance to the warranties provided in an Order in the goods, associated equipment or materials, commence corrective action to make good the defect or nonconformance, or if the corrective action is unknown, commence an investigation of the nonconformity, whether such defect or nonconformance is discovered before or after inspection and acceptance by Buyer of such goods or associated equipment or materials. In the event of a failure by a part or goods during the period it is under warranty, Buyer will return the non-conforming part or goods to Supplier at Supplier’s cost and expense and Supplier will, at Buyer’s option either repair and return such non-conforming part or goods or replace such non-performing part or goods with a new part or goods. Removal and reinstallation of the part or goods will be at the sole expense of Supplier.
- COUNTERFEIT MATERIALS: Supplier shall use only sources approved by Supplier’s supply chain management system. Supplier shall utilize a documented counterfeit parts management process as provided in this Section for containment of counterfeit items and notification to Buyer when such items are discovered. This process will prevent return of counterfeit items to the supply chain. Supplier ’s processes related to purchasing shall include the following: (a) the assessment of potential sources of supply which include electronic parts, assembly, and equipment suppliers to determine the risk of receiving counterfeit parts; (b) the maintenance of a register of approved suppliers, including the scope of the approval, to minimize the risk of counterfeit parts supply; (c) the specification of a preference to procure directly from original component manufacturers or their authorized suppliers and those who are on the approved supplier register; (d) assurance that approved and ongoing sources of supply are maintaining effective processes for mitigating the risks of supplying counterfeit electronic parts; (e) the assessment and mitigation of risks of procuring counterfeit parts from sources other than the original component manufacturer or its authorized suppliers; (f) the specification of supply chain traceability to the original component manufacturer or aftermarket manufacturer that identifies the name and location of all of the supply chain intermediaries from the part manufacturer to the direct source of the product for the Supplier ; and (g) the requirement that specifications and applicable requirements will be flowed down to the applicable suppliers and their sources on all Orders.
- CONFLICT MINERALS: Supplier shall comply with the goals and objectives of Section 1502 of the Dodd-Frank Act which aims to prevent the use of conflict minerals (tantalum, tin, gold and tungsten, or "3TG") that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo and adjoining countries (collectively, the "DRC"). Therefore, Supplier represents that it has adopted policies and systems to validate, to the extent possible, sourcing and chain of custody of such materials. Supplier will provide its most recent supporting data on its supply chain on 3TG upon Buyer’s request but no less than each calendar year.
- EQUAL EMPLOYMENT OPPORTUNITY: The Supplier will comply with the provisions of the Equal Employment Opportunity, Affirmative Action for the Physically and Mentally Handicapped and Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era Acts, the provisions of Section 202 of Executive Order 11246, Executive Order 11701, Section 2012 of the Vietnam Era Veterans Readjustment Act of 1974, Section 503 of the Rehabilitation Act of 1973 as amended, and the American with Disabilities Act of 1990. All rules and regulations relating to the foregoing are hereby incorporated by reference and Supplier represents by acceptance of an Order that it will comply with such Executive Orders, Acts, rules and regulations, and amendments thereto to the extent the same are applicable. The Supplier will also abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that suppliers take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
- LIMITATION OF LIABILITY: Nothing in any Order will exclude or limit (a) Supplier’s liability under Sections 15 (Infringement), 19 (Patent Indemnity), and 22 (Supplier’s General Indemnity of Buyer) hereof, or (b) Supplier’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. Buyer’s maximum liability to Supplier will not exceed the aggregate amount actually paid or payable under an Order.
- WAIVER: No waiver by either party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- CUMULATIVE REMEDIES: The Buyer’s rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- NOTICES: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- SEVERABILITY AND INTERPRETATION: If any term or provision of an Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect any other term or provision of the Order or invalidate or render unenforceable such term or provision in any other jurisdiction. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that these Terms shall be more strictly construed against one party than against another.
- SURVIVAL: Provisions of an Order which by their nature should apply beyond their terms shall remain in force after any termination or expiration of the Order including, but not limited to, the following provisions: 4 (Confidentiality and Advertising),10 (Governing Law and Jurisdiction), 11 (Compliance with Laws), 12 (Deduction and Setoff), 15 (Infringement), 17 (Insurance), 19 (Patent Indemnity), 20 (Patent Rights), 22 (Supplier ’s General Indemnification of Buyer), 27 (Warranty) and 36 (Survival).
- RELATIONSHIP: Nothing in these Terms shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.