1. Acceptance — Agreement; Entire Agreement.
If, for any reason, Seller should fail to accept the purchase order in writing, any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter herein shall constitute acceptance by Seller of the purchase order and all its terms and conditions. Any proposed terms in Seller’s acceptance of Buyer’s offer which add to, vary from, or conflict with these terms are hereby objected to. Any proposed terms shall be void and these terms shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. If the purchase order has been issued by Buyer in response to an offer, and if any of these terms are additional to or different from any terms of such offer, then the issuance of the purchase order by Buyer shall constitute an acceptance of such offer, subject to the express conditions that the Seller assents to such additional and different terms herein and acknowledges that the purchase order constitutes the entire agreement between Buyer and Seller.
2. Delivery; Seller’s Inspection and Expedited Shipment.
Time is of the essence and therefore, Seller shall deliver the goods and/or services strictly in accordance with the dates and requirements set forth or referenced on the purchase order and other terms and conditions set forth herein, including but not limited to the shipping, labeling, packaging requirements and statement of work. Delivery of goods must include a packing slip itemizing the contents, order number on all packages, commercial invoice (if applicable) and any other requested documentation. Shipments of raw materials must show the number of containers in each lot and each container must also be plainly identified by Buyer’s title, manufacturer’s control number, and net weight packing slips. Invoices must show Buyer’s order number, net weights and cash and transportation terms. Invoices improperly rendered may be returned for correction without loss of discount. Cash discounts will be computed from date of invoice. Bills of Lading must show Buyer’s order number, net weights and number of containers. If transportation is F.O.B. origin and transportation charges are for Buyer’s account, Seller shall ship at the value which will produce lowest transportation cost. Prior to delivery, Seller shall inspect and/or test goods for compliance with the specifications and the purchase order. Quantity variances are not permissible between the original order quantity and the actual quantity received. If an over shipment is received without prior approval, Buyer has the right to reject the quantity in excess of the original order quantity. Expedited Shipments. If it becomes necessary, in order to comply with Buyer’s required delivery of goods, to ship by a more expensive method than specified in the purchase order, Seller shall pay any additional resulting costs.
3. Price, Payment and Acceptance; Buyer’s Inspection and Acceptance.
The price and payment terms for the goods and services are specified on the purchase order. If the currency is not specified, the parties agree that the appropriate currency shall be the national currency for the office issuing the purchase order. The price shall include all applicable taxes, tariffs and similar charges. Seller shall box, crate or package as necessary for shipment without charge unless otherwise specified on the purchase order. Buyer shall have no obligation for payment until Buyer’s receipt of the goods and services and any required documentation. Payment for the goods and services delivered hereunder shall not constitute acceptance of such goods and services. Buyer shall have the right (but not the obligation) to inspect such goods and/or services and to reject any or all of those which are, in Buyer’s judgment, defective or nonconforming. Rejected goods and goods supplied in excess of quantities called for in the purchase order may be returned to Seller at Seller’s expense and, in addition to Buyer’s other rights, Buyer may charge Seller all expenses related to unpacking, examining, repacking and reshipping such goods. Buyer shall be entitled to preserve and keep a sample of any rejected good. In the event Buyer rejects goods or services or receives goods or services whose defects or nonconformity is not apparent upon examination, Buyer reserves the right to require replacement goods or services as well as payment for all damages, including but not limited to the cost of a recall.
4. General Warranty.
Seller expressly warrants that the goods and/or services furnished pursuant to the purchase order shall: a) conform to any specifications and statement(s) of work, as applicable; b) conform to the terms and conditions of the purchase order (including any referenced or attached documents); c) conform to applicable laws; d) conform to appropriate industry standards; e) be new and free from defects in design, material and workmanship; f) be free of liens and encumbrances; g) be fit for their intended purpose and use; h) be merchantable; and i) not be adulterated or misbranded, at the time of delivery. Seller’s warranties shall run to Buyer, its successors, assigns and customers and users of such goods or services. Acceptance or use of the goods or services furnished hereunder shall not affect Seller’s obligations hereunder, and such warranties shall survive acceptance and use.
5. Termination by Buyer.
A) Without Cause. Buyer shall have the right to terminate the purchase order or any part by written notice at any time, and if such notice is provided, Seller shall immediately stop all work. Buyer agrees to pay a termination charge equal to the direct out-of-pocket expenses previously incurred by Seller prior to receipt of such notice. Seller shall minimize costs to Buyer which includes, but is not limited to diverting labor, resources, raw materials or components to other projects or purchase orders. Notwithstanding the foregoing, the parties acknowledge and agree that, in no circumstances, shall Buyer be charged for raw materials or components that it routinely sells to other buyers. B) Termination for Cause. If Seller fails to observe or comply with any of the instructions, terms, conditions, or warranties contained in the purchase order, or fails to provide Buyer, upon request, with reasonable assurance of future performance as requested, such failure(s) shall each be defaults allowing Buyer to terminate the purchase order for cause. In addition to any other rights in the purchase order, in the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for all damages sustained by reason of the causes which gave rise to the termination.
6. Confidentiality/Proprietary Information.
Seller shall consider all information (including price and the terms and conditions) furnished by Buyer to be confidential and shall not disclose any such information to any other third party, or use such information itself for any purpose other than as specified in the purchase order, unless Seller obtains written permission from Buyer to do so. All confidential information shall be returned to Buyer upon request. Seller shall not advertise or disclose the fact that Buyer has contracted to purchase goods and/or services from Seller. Unless otherwise agreed in writing, no information disclosed in any manner or at any time by Seller to Buyer shall be deemed secret or confidential.
7. Data Protection Legislation.
The parties shall comply with the Data Protection Agreement attached and incorporated herein as Schedule 1.
8. Intellectual Property Rights.
In consideration of the purchase order and without further cost to Buyer, Seller grants to Buyer, and its assignees and customers, an irrevocable, worldwide, nonexclusive royalty-free right and license to use or sell the goods and/or services embodying any Seller-owned intellectual property rights. Seller agrees, at its own expense, to defend any suit or action against Buyer or against those selling or using the goods and/or services covered by the purchase order for alleged infringement of intellectual property rights arising from the sale or use of such goods and/or services, and to indemnify and save Buyer and those selling or using such goods and/or services harmless from any damages, liabilities, claims, losses, and expenses (including attorney’s fees) (collectively, “Damages”) paid or incurred by Buyer in connection with any such suit or action, whether against Buyer or against those selling or using the goods and/or services covered by the purchase order; provided, however, that this indemnity shall not apply to any such Damages arising out of Seller’s compliance with Buyer’s specifications or statement(s) of work.
9. Maintenance, Access to Records and Audit Rights.
Seller shall maintain all records for the longer of (5) five years, the time period required by contract, the time period specified in the purchase order, or the time period specified under applicable law after final payment is made. Within five (5) business days after receipt of notice by Seller, Buyer (or its designated representative) shall be allowed access in which to examine, audit and copy, any records or manufacturing processes to determine compliance with applicable laws, the purchase order or to respond to any government inquiry.
10. Work on Buyer’s Premises; Training.
Seller agrees that, while its personnel or agents are on Buyer’s premises, such personnel or agents shall (i) comply with all applicable laws and Buyer’s work rules, safety regulations and its standard practices governing employee behavior; and (ii) take any required training in furtherance of such compliance.
11. Buyer’s Property.
All special tools, dies, patterns, jigs, drawings, equipment and fixtures ("Tooling") supplied or paid for by Buyer shall remain Buyer’s property and Seller agrees to comply promptly with all disposal and shipping instructions with respect to such Tooling. Seller agrees, at its expense to maintain all Tooling in its possession which belongs to Buyer in first-class condition and repair and adequately insure against all damages and loss. Seller further agrees to indemnify Buyer for all damage or loss to such Tooling. Seller shall prominently mark all Tooling as “Owned by” the Buyer (to the extent practical) and agrees not to remove such Tooling from Seller’s facility without Buyer’s written permission.
12. Safety and Environmental Requirements.
In the conduct of its business, Seller shall obtain and maintain all applicable licenses and permits and comply with all applicable environmental and safety laws, rules, regulations and directives. To enable Buyer to properly discharge, use, store, handle, transport and dispose of the goods and comply with applicable requirements, Seller shall provide Buyer, upon request, with any information about the characteristics, components or contents of the goods.
13. Indemnity and Insurance.
Seller shall defend, indemnify and hold harmless Buyer against all Damages arising out of or resulting in any way from any defect in the goods and/or services purchased hereunder, or from any breach of the purchase order by Seller or any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the warranty obligations of Seller. Seller shall maintain general commercial liability (including contractual & products liability), automobile liability (including non owned automobiles), worker’s compensation, and employer’s liability insurance with such coverage and in such amounts as a reasonably prudent party would maintain to adequately protect Buyer against such Damages. At Buyer’s request, Seller agrees to submit certificates of insurance evidencing its coverage.
14. Limitation on Buyer’s Liability.
Buyer’s liability for any Damages arising out of or in connection with the purchase order shall not exceed the price allocable to the goods and/or services which give rise to the claim. In no event shall Buyer be liable for anticipated profits, incidental or consequential damages or penalties of any description.
15. Compliance with Laws.
In the conduct of its business and performance hereunder, Seller (including its subcontractors or other agents) shall comply with, and give all notices required by, all applicable laws, regulations and directives. With respect to any requirement to which Buyer may be subject to hereunder (e.g. import/export), Seller shall provide to Buyer, upon request, with any information that Buyer requests to obtain an export license, classify a product for import or export, respond to any government inquiry, or otherwise.
Assignments and Subcontracting. Seller shall not assign or subcontract this purchase order, in whole or in part, to any third party without Buyer’s prior written approval, and in any case Seller shall be responsible and liable for such third party’s performance. Setoff. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer. Waiver. Buyer’s failure or delay to insist on performance of any of the terms or conditions herein, or to exercise any right or privilege, or its waiver of any breach hereunder, shall not thereafter waive any other breach, term or condition, whether of the same or similar type. Remedies. Buyer’s remedies shall be cumulative and remedies herein specified do not exclude any remedies allowed by law or in equity. Force Majeureem>. Buyer may delay delivery and/or acceptance of goods and/or services occasioned by causes beyond its control without penalty or additional expense. Governing Law/Venueem>. The purchase order shall be construed in accordance with the national laws of the office issuing the purchase order, without regard to conflicts of laws principles. Both parties agree that venue for any actions arising under the purchase order shall be according to the laws of the office issuing the purchase order governing jurisdiction for the sale of international goods, and both parties hereby irrevocably submit to the personal jurisdiction of such tribunal. Independent Contractor. Seller and Buyer intend that an independent contractor relationship shall be created by this purchase order and nothing herein shall be construed as creating an employer/employee relationship, partnership, joint venture, or concerted action. Survival. All provisions of the purchase order and any referenced or attached documents which by their nature should survive termination shall survive and remain binding on the parties and their legal representatives, successors, and assigns.
DATA PROTECTION AGREEMENT
Data Protection Legislation (“Legislation”) shall mean as applicable, the EU General Data Protection Regulation, the UK General Data Protection Regulation, and any other data protection or privacy law relevant in the applicable jurisdiction. Defined terms used herein shall have the meaning given them in the Legislation.
1. DATA PROTECTION
1.1. Both parties will comply with all applicable requirements of the Legislation. This clause is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
1.2. The parties acknowledge that in entering into this agreement and performing their respective obligations thereunder, each party may collect and process certain Personal Data, meaning information about identifiable individuals, pertaining to employees or representatives of each company. In this regard, each party may act as a Data Controller or Data Processor in relation to the Personal Data of each other’s employees or representatives.
1.3. Without prejudice to the generality of clause 1.1, the parties will ensure that they have a necessary and appropriate consents and notices in place to enable lawful collection and transfer (as the case may be) of the Personal Data for the duration and purposes of this agreement.
1.4. Without prejudice to the generality of clause 1.1, each party shall, to the extent that the Legislation applies to their processing Personal Data in connection with the performance of obligations under this agreement:
(a) process that Personal Data only on the written instructions of the respective Data Controller unless the Data Processor is required by Applicable Laws to otherwise process that Personal Data. Where the Data Processor is relying on laws of UK or European Union law as the basis for processing Personal Data, the Data Processor shall promptly notify the Data Controller of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Data Processor from so notifying;
(b) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Data Controller, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside of the UK or European Economic Area (as the case may be) unless the prior written consent of the Data Controller has been obtained and the following conditions are fulfilled:
(i) appropriate safeguards are in place in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) the Data Processor complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Data Processor complies with reasonable instructions notified to it in advance by the Data Controller with respect to the processing of the Personal Data;
(e) assist the Data Controller, at its cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Data Controller without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Data Controller, delete or return Personal Data and copies thereof on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause and allow for audits by the Data Controller or its designated auditor and immediately inform the Data Controller if, in the opinion of the Data Processor, an instruction infringes the Legislation.
1.5. The Data Controller consents to the Data Processor appointing a third party processor under this agreement and the Data Processor shall promptly inform the Data Controller of the identity of the third party processor. Data Processor confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Data Controller and the Data Processor, the Data Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
1.6. Either party may, at any time on not less than thirty (30) days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).