WHEEL PROS, LLC DBA HOONIGAN
SUPPLIER GENERAL TERMS AND CONDITIONS
These Supplier General Terms and Conditions are
between Wheel Pros, LLC dba Hoonigan (“Wheel Pros”) and any Wheel Pros
subsidiary (as identified in the applicable purchase order(s) (“Purchase
Order(s)”), herein referred to as “Buyer,” and the party to the Purchase Orders
issued by Buyer and having an address as specified on the Purchase Orders, on
behalf of itself and its affiliates, hereinafter referred to as “Seller.” Both
Buyer and Seller (individually referred to as a “Party” and collectively referred
to as the “Parties”) agree to these terms and conditions for all Purchase
Orders given by Buyer to Seller at any time.
Each Purchase Order and Purchase Order revision issued
by Buyer is an offer (an “Offer”) to Seller for the purchase of goods and / or
services by Buyer that includes and is governed by these Supplier General Terms
and Conditions, the Wheel Pros Supplier Code of Conduct (the “Code of
Conduct”), the terms contained in any addendum or supplement issued by Buyer
and accepted by Seller (whether such acceptance is in accordance with the
following or otherwise), any supplier manual provided or made available by Buyer
to Seller, and any other documents incorporated by reference in a Buyer
Purchase Order or in these Supplier General Terms and Conditions (collectively,
the “Terms,” and Purchase Order(s) and these Terms together, the “Contract”).
Seller has read and understands these Terms and agrees that Seller’s written
acceptance or commencement of any part of the work or services under any
Purchase Order (including, e.g., shipping goods) shall constitute Seller’s
acceptance of this Contract, including Buyer’s Offer under a Purchase Order and
these Terms. All terms and conditions proposed by Seller that are different
from or in addition to these Terms, including, but not limited to, terms and
conditions contained in any quotation / quote, invoice, or acceptance by Seller,
are expressly objected to and rejected by Buyer. Any such proposal or attempted
variance by Seller shall not operate as a rejection of an Offer, these Terms,
or the Contract. If Seller accepts Buyer’s Offer by any means provided for
under these Terms or applicable law, the Offer, these Terms, and the Contract
shall be deemed accepted by Seller without any additional or different terms or
variations whatsoever. Buyer’s issuance of a Purchase Order does not constitute
an acceptance by Buyer of any prior offer or proposal by Seller, and any
reference in the Purchase Order or the Terms to any such prior offer or
proposal (including any quotation / quote issued by Seller, whether such
quotation / quote purports to contain Seller’s terms of sale, if any) is solely
to incorporate the description or specifications of the goods and / or services
contained in such offer or proposal, but only to the extent that such
description or specifications are not directly in conflict with Buyer’s
description and specifications contained in the Contract. Seller shall confirm
to Buyer the receipt of each Purchase Order issued hereunder (each, a
“Confirmation”) within twenty-four (24) hours following Seller’s receipt
thereof, by EDI, facsimile, email, or mail service / courier. Each Confirmation
must reference Buyer’s Purchase Order number and include: (a) pricing; (b)
lead-time; (c) confirmation of delivery dates; and (d) confirmation of
acceptance of the Purchase Order; or, Seller shall advise Buyer of Seller’s
rejection of such Purchase Order, the date of rejection, and the basis for
rejection, if applicable. If Seller fails to issue a Confirmation within the
time set forth in this Paragraph but commences performance under such Purchase
Order, Seller will be deemed to have accepted the Purchase Order and the
Contract. Buyer may withdraw any Purchase Order prior to Seller’s acceptance
(or deemed acceptance) thereof; for the avoidance of doubt, short of a written
acceptance from Seller, Buyer may withdraw a Purchase Order at any time from
Seller.
The quantity or quantities applicable to each Purchase
Order, and the duration applicable to each Purchase Order, shall be as
specified by Buyer on the face of the Purchase Order. The quantity or
quantities specified in a Purchase Order may be for any amount of Buyer’s
requirements for the goods, as specified by Buyer. Seller further acknowledges
and agrees that Seller is obligated to provide goods to Buyer in the quantity
or quantities specified in any release issued by Buyer under a Purchase Order.
Releases may include projections or estimates for future quantities, but
releases may only be binding upon Buyer for, and Buyer will have no obligation
or liability beyond, the firm quantity or firm quantities specified by Buyer in
the release. Notwithstanding anything to the contrary, if Buyer specifies that
any quantity or quantities under any Purchase Order are firm quantities, then
Buyer generally shall purchase all such firm quantities; provided, however,
that if Buyer terminates a Purchase Order under this Contract for certain
reasons (e.g., for cause or due to a breach by Seller under the Contract), then
Buyer shall not be obligated to purchase any amounts under a Purchase Order.
Seller acknowledges and agrees to accept the risk associated with the lead times
of the various components or goods, regardless of whether any such quantity or quantities
of any such components or goods are specified under a firm release quantity or
quantities provided by Buyer. If requested by Buyer in writing at any time,
Seller shall maintain safety stock / inventory of any goods or components in
amounts specified by Buyer.
Seller agrees: (a) to pack, mark, and ship goods
properly in accordance with the requirements of Buyer, the involved carriers,
applicable law, industry standards, and, if applicable, the country of
destination; (b) to route shipments in accordance with Buyer’s instructions;
(c) to make no charge for handling, packaging, storage or transportation of
goods, unless otherwise stated as an item on the Purchase Orders; (d) to
provide with each shipment packing slips with Buyer’s contract and / or release
number and date of shipment marked thereon; (e) to mark each package properly
with a label / tag according to Buyer’s instructions; (f) to forward promptly
the original bill of lading or other shipping receipt for each shipment in
accordance with Buyer’s instructions. Seller will include on bills of lading or
other shipping receipts the correct tariff classification code as identified
under the appropriate Harmonized Tariff System (“HTS”) and the correct Export
Classification Control Number (“ECCN”), where applicable, and identify all of
the goods shipped in accordance with Buyer’s instructions and the carrier’s
requirements. The marks on each package and identification of the goods on
packing slips, bills of lading, and invoices (when required) shall be sufficient
to enable Buyer and any domestic or foreign customs officials to identify the
goods purchased easily. Other relevant provisions with which Seller must comply
(e.g., providing country of origin information) are as set forth in these Terms
and the Contract. Unless otherwise specified by Buyer in writing, via Purchase
Order or otherwise, the terms of sale for all such shipments shall be Delivery
Duty Paid (“DDP”) as defined under Incoterms® 2020 (or whichever Incoterms®
edition is most current, as may be updated from time to time). Buyer may
withhold payment pending receipt of evidence, in such form and detail as Buyer
may direct, of the absence of any liens, encumbrances, and claims on the goods
or services provided by Seller to Buyer. Notwithstanding anything to the
contrary, Seller will bear all risk of loss or damage with respect to the goods
(and, the consequences of any potential, subsequent delays) until Buyer’s
receipt and acceptance of such goods in accordance with the terms hereof.
Depending on the applicable commercial terms as
designated by Buyer, prices may include, and Seller may be responsible for, any
and all applicable payments, costs, and expenses of any kind, up to and
including, e.g., packing, crating, boxing, transporting, loading and unloading,
customs, taxes, tariffs and duties, insurance, and any other similar financial
contributions or obligations relating to the production, manufacture, sale, and
delivery of the goods. The terms of payment specified by Buyer (e.g., on Purchase
Orders) shall control and may not be contradicted by any differing payment
terms (e.g., those set forth on any invoices, proposals, or quotations / quotes
rendered by Seller to Buyer). All prices previously agreed by Buyer and Seller
are firm and are not subject to increase for any reason, including, e.g.:
changes in market conditions; increases in raw material, component, labor, or
overhead costs; labor disruptions; changes in program timing or length; or
fluctuations in production volumes, unless Buyer agrees in writing in Buyer’s
sole discretion to discuss any prospective pricing adjustments with Seller.
Seller represents and warrants that each of its prices offered to Buyer is at
least as low as the price charged by Seller to any other purchasers of the same
or similar goods or services as Buyer. If at any time during the term of a
Purchase Order, Seller charges any other purchaser a lower price for the same
goods or similar goods or the same services or similar services than Buyer,
then Seller shall immediately apply that lower price to all same or similar
goods and all same or similar services under an applicable Purchase Order for
Buyer. If Seller fails to provide the lower price for Buyer, then Buyer may, in
Buyer’s sole discretion and without liability, in addition to all of Buyer’s
other rights under this Contract or at law, immediately terminate the
applicable Purchase Order upon written notice to Seller.
Time is of the essence, and deliveries shall be made
both in quantities and at times specified by Buyer (e.g., in Buyer’s
schedules). Buyer shall not be required to make payment for goods delivered to
Buyer that are in excess of quantities specified by Buyer (e.g., in Buyer’s
delivery schedules). Buyer may change the rate of scheduled shipments or direct
temporary suspension of scheduled shipments, neither of which shall entitle
Seller to a modification of the price for goods or services covered by the
Purchase Orders. Where quantities and / or delivery schedules are not
specified, Seller shall deliver goods in such quantities and times as Buyer may
direct in subsequent releases. In Buyer’s sole discretion and at Buyer’s option
(but not as Buyer’s exclusive remedy), Buyer may levy charge(s) against Seller
for any failure of Seller to fulfill any of its obligations under this
provision, in amounts determined by Buyer in its sole discretion on a
case-by-case basis (and Seller agrees that Seller shall promptly pay Buyer such
charge(s)), including, but not limited to: (a) charges for each part number
that does not meet the prescribed delivery date on a Purchase Order; and (b)
per-day and / or on-going charges, if any late delivery of any part number
under a Purchase Order results in a line down situation at Buyer’s business.
If Seller’s acts or omissions result in Seller’s
failure to meet Buyer’s delivery requirements and Buyer requires a more
expeditious method of transportation for the goods than the transportation
method originally specified by Buyer, Seller shall ship the goods as
expeditiously as possible (and in whatever manner directed by Buyer), all at
Seller’s sole expense. In the event that Seller refuses to use a more
expeditious method as directed by Buyer, Buyer may, at Buyer’s option in
Buyer’s sole discretion and without liability, arrange for such shipping
methods as Buyer deems necessary to meet the delivery requirements and recover
all related expenses from Seller or cancel the applicable Purchase Order upon
written notice to Seller. Unless otherwise expressly agreed to by the Parties
in writing, Seller may not make partial shipments of goods to Buyer.
a. Buyer
reserves the right, at any time, to direct changes, or to cause Seller to make
changes, to drawings and specifications of the goods or to otherwise change the
scope of the work covered by any Purchase Order, including work with respect to
such matters as inspection, testing, or quality control, and Seller agrees to
make such changes as promptly as possible. Any difference in price or time for
performance resulting from such changes may be equitably adjusted by Buyer, in
Buyer’s sole discretion, after receipt of documentation in such form and detail
as Buyer may direct. Failure of the Parties to agree on the amount of, or need
for, an equitable adjustment shall not constitute grounds for Seller to suspend
or terminate performance of its obligations under the Contract. Seller may not
make any change in design, processing, packing, shipping, or place of delivery
without Buyer’s written approval, subject to Buyer’s sole discretion. Any
changes to any Purchase Order or these Terms shall be made only in accordance
with the applicable requirements set forth in these Terms or this Contract.
b. Buyer
reserves the right, at any time, to implement or to update escalation
procedures, in Buyer’s sole discretion, and Seller shall comply with all such
escalation procedures, as directed by Buyer and as required in any of Buyer’s
applicable guides, manuals, policies, and similar documents.
a. Seller
agrees to participate in Buyer’s supplier quality and development program(s)
and to comply with all quality requirements and procedures specified by Buyer,
as revised from time to time in Buyer’s sole discretion. In addition, Buyer
shall have the right to enter Seller’s facility / facilities on an “as needed”
basis to inspect all relevant documents, records, materials, equipment,
tooling, and goods in the possession of or under the control of Seller relating
to any of Seller’s obligations under any Purchase Order or this Contract.
Buyer’s inspection of the goods, whether during manufacture, prior to delivery,
or within a reasonable time after delivery, shall not constitute acceptance of
any work-in-process or finished goods, nor shall it constitute Buyer’s approval
of Seller’s manufacturing practices or procedures. For the avoidance of doubt,
Buyer’s right to enter Seller’s facility / facilities for inspection purposes,
as set forth in this provision, also extends to all of Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors, and Seller shall ensure
that Buyer shall have full access to the facility / facilities of Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors,
consistent with this provision and to the same extent that Buyer has full
access to Seller’s facility / facilities.
b. At Buyer’s
request and at Seller’s sole cost and expense, Seller shall furnish to Buyer
test samples of goods as required by Buyer to determine if their manufacture is
in accordance with the specifications furnished by Buyer and in accordance with
Buyer’s quality standards. Seller shall perform quality inspections of goods
before delivery and shall certify inspection results in any manner requested by
Buyer.
c. Seller shall
provide any and all support as requested by Buyer to address and to correct
quality concerns. In addition to Buyer’s other rights and remedies, Buyer may
hold Seller responsible for (and Seller shall promptly reimburse Buyer for)
costs associated with quality-related issues, including, e.g., quality-issue
investigation and containment, as well as subsequently required solutions to
such quality-related issues.
d. Seller
shall, on a continuous basis, use Seller’s best efforts proactively to identify
ways to improve the quality, service, performance standards, and technology for
the goods, including, e.g., through participation in Buyer’s
quality-improvement initiatives.
e. To the
extent that Seller provides goods that are or may be installed on original
equipment at original equipment manufacturer(s) (OEM(s)), Seller shall conform
to Buyer’s customers’ quality control standards, which may include compliance
with industry standards, which may include, e.g., IATF 16949, ISO 9001, or VDA
6.1, or any other customer-specific requirements (CSR(s)).
f. In addition
to all of Seller’s obligations to comply with all of Buyer’s quality-related
requirements, Seller hereby acknowledges and accepts Buyer’s Supplier Quality
Manual, as may be updated by Buyer in Buyer’s sole discretion from time to
time, and Seller hereby represents and warrants that Seller is and will remain
in full compliance with all of the terms and conditions of Buyer’s Supplier
Quality Manual.
Seller acknowledges that Buyer will decide in Buyer’s
sole discretion whether to perform incoming inspections of the goods and Seller
waives any rights to require Buyer to conduct such inspections. However, Buyer
reserves the right to inspect the goods, in Buyer’s sole discretion, and
further, to determine in Buyer’s sole discretion if the goods are nonconforming
for any reason(s), including, but not limited to: visual or cosmetic
nonconformities; functional nonconformities; and / or nonconformities with any
specifications and / or warranties under the Contract. To the extent that Buyer
rejects any or all goods under any Purchase Order as nonconforming for any reason,
any and all costs associated with such nonconforming goods will be credited to
Buyer from Seller in the form of a chargeback; for the avoidance of doubt, such
costs may include, but are not limited to: raw materials; storage and handling
expenses; administrative fees; additional third-party costs or activities; and
any and all other costs incurred directly or indirectly by Buyer. Nonconforming
goods may be held by Buyer at Seller’s risk, in Buyer’s sole discretion, and,
in the event that Buyer elects to hold such nonconforming goods, then Buyer
shall endeavor to use reasonable commercial efforts to follow any reasonable,
written instructions from Seller with respect to holding such nonconforming
goods. Seller’s failure to provide written instructions within two (2) business
days (or such shorter period as may be commercially reasonable under the
circumstances) from the date of notice of nonconformity from Buyer, shall
entitle Buyer, at Buyer’s option, to charge Seller for storage and handling or
to dispose of the goods (at Seller’s expense) without liability to Buyer.
Payment for nonconforming goods shall not constitute an acceptance of the
nonconforming goods, nor shall it limit or impair any of Buyer’s rights to seek
any legal or equitable remedies related to the nonconforming goods, nor shall
it relieve Seller from responsibility for latent or obvious defects (no matter
when such latent or obvious defects are discovered, and whether discovered by
Buyer or by an end customer or end user), and further, such payment for and /
or receipt of nonconforming goods does not cure the nonconforming aspect(s) of
the nonconforming goods. In Buyer’s sole discretion and at any time, Buyer may
direct Seller to contract, at Seller’s sole expense, with third-party inspection
and containment service providers (or any other party, as appropriate) to
address any issues or needs that may arise in connection with any of the
foregoing.
Any delay or failure of either Party to perform its
obligations shall be excused if Seller is unable to produce, sell, or deliver,
or Buyer is unable to accept delivery, buy, or use, the goods or services
covered by a Purchase Order, as the result of an event or occurrence beyond the
reasonable control and foresight of the Party and without its fault or
negligence, including, but not limited to, acts of God, natural disasters,
fires, floods, windstorms, tornadoes, explosions, riots, wars, sabotage, court
injunction or order, or any other similar and reasonably uncontrollable and
unforeseeable event (each and any such event, a “Force Majeure Event”);
provided, that written notice of such delay (including the anticipated duration
of the delay) or of such failure to perform due to a Force Majeure Event shall
be given by the affected Party to the other Party as soon as possible after the
Force Majeure Event first impacts the affected Party (but in no event more than
five (5) business days thereafter). During the period of such delay or failure
to perform by Seller due to a Force Majeure Event, Buyer, at Buyer’s option and
without liability, may purchase goods and services from other sources and
reduce its schedules to Seller by such quantities, or have Seller, if
reasonably practicable despite the Force Majeure Event, provide the goods and
services from other sources in quantities and at times requested by Buyer
(unless prohibited by economic sanctions, export control laws, or other
applicable laws), and at the price set forth in the existing Purchase Orders.
In addition, Seller, at Seller’s sole expense, shall take such actions as are
necessary to ensure the supply of goods and services to Buyer for a period of
at least thirty (30) days during any anticipated labor disruption or resulting
from the expiration of Seller’s labor contract(s). If requested by Buyer and if
reasonably practicable despite the occurrence of a Force Majeure Event, Seller
shall, within ten (10) days of being impacted by a Force Majeure Event, provide
reasonable assurances that any delay caused by a Force Majeure Event shall not
exceed thirty (30) days total. If the delay caused by a Force Majeure Event is
reasonably likely to last more than thirty (30) days in Buyer’s sole
estimation, or Seller does not provide reasonable assurance to Buyer’s
satisfaction that the delay caused by a Force Majeure Event will cease within
thirty (30) days, Buyer may immediately and without liability terminate all
obligations to Seller, including, e.g., under any Purchase Orders.
a. In addition
to Seller’s customer warranties, any express warranties set forth in the
Contract, any statutory warranties, and any warranties implied by or available
under applicable law, Seller expressly warrants, represents, guarantees, and
acknowledges that: (i) Seller is not insolvent and is paying all of its debts
as they become due; (ii) all financial information that Seller has provided to
Buyer is true and accurate and fairly represents Seller’s financial condition,
and has been prepared in accordance with GAAP, uniformly and consistently
applied; and (iii) the goods covered by any Purchase Order and / or otherwise
delivered to Buyer by Seller: (A) shall strictly conform with all applicable
specifications, drawings, statements on containers or labels, descriptions, and
samples, whether furnished to or by Buyer, and all industry standards, laws,
and regulations in force in countries where such goods are to be sold or used;
(B) shall be free from defects in design, material, and workmanship and shall be
new and of the highest quality; (C) shall be free and clear of all liens,
claims, or other encumbrances, and that Seller is conveying good title to
Buyer; (D) shall be merchantable, of good material and workmanship, free from
defects, and safe; (E) have been selected, designed, manufactured, sourced, and
/ or assembled by Seller, as applicable, based upon, and will be fit and
sufficient for, the particular purpose(s) intended by Buyer, which purpose(s)
Seller acknowledges are known to Seller; (F) shall be adequately contained,
packaged, marked, and labeled; (G) in the case of services, all services
performed on behalf of Buyer shall be performed in a competent, workmanlike
manner; and (H) the goods, whether manufactured by Seller or manufactured by a
third party and distributed or sold / re-sold by Seller, shall be manufactured,
sourced, distributed, and / or sold / re-sold, as applicable, in accordance and
in full compliance with all applicable federal, state, international, and local
laws, regulations, industry standards, and any other applicable standards,
labeling, transporting, licensing approval, or certification requirements in
the United States or any other country where the goods will be sold or used.
b. The
warranties provided by Seller to Buyer under Paragraph 11.a.(i)-(ii) shall not
expire. The warranty period regarding the warranties provided by Seller to
Buyer under Paragraph 11.a.(iii) shall be the longer of: (i) any warranty
period specified in any Purchase Order(s); (ii) any warranty period offered by
Seller in writing or verbally, related to the goods specified in any Purchase
Order(s); (iii) any warranty period specified by law; (iv) the warranty period
given by Seller to its other customers for goods of like nature to those set
forth on any Purchase Order(s) or otherwise delivered to Buyer; (v) a period of
three (3) years from date of sale by Buyer to Buyer’s end customer of such
goods supplied by Seller; or (vi) any applicable warranty period offered to
retail purchasers of the goods or of the end product(s) into which the goods
are incorporated.
c. Notwithstanding
the foregoing, Seller agrees to waive the expiration of the warranty period in
the event there are failures or defects discovered after the warranty period of
a significant nature or in a significant portion of the goods, as determined by
Buyer in Buyer’s sole discretion, or a defect is discovered that, in Buyer’s
sole discretion, constitutes a threat of damage to property or to the health
and / or safety of any person.
d. In the event
that Buyer, or Buyer’s end customer, voluntarily or pursuant to a government
mandate, makes an offer to owners of vehicles (or other finished products), on
which the goods, or any parts, components, or systems incorporating the goods,
are installed, to provide remedial action to address a defect or condition that
relates to motor vehicle safety or reliability, or the failure of a vehicle to
comply with any applicable law, safety standard, or guideline, whether in
connection with a recall campaign or other customer-satisfaction or
corrective-service action (a “Remedial Action”), the warranty period shall
continue for such time period as may be dictated by Buyer, Buyer’s end
customer, or the federal, state, local, or foreign government where the goods
are used or provided, and Seller shall fully comply with the requirements of
this Contract. Notwithstanding the expiration of the warranty period, Seller
shall nonetheless be liable for cost and damages associated with any Remedial
Action to the extent that such Remedial Action is based upon a determination by
Buyer in Buyer’s sole discretion (including, e.g., through the use of
statistical analysis or other sampling methodology) that the goods fail to
conform to the warranties set forth in this Contract. As determined by Buyer in
Buyer’s sole discretion, Seller shall pay all expenses associated with
determining whether a Remedial Action involving the goods is necessary. Buyer
and Seller agree that any Remedial Action involving the goods shall be treated
separately and distinctly from similar Remedial Actions of other goods of
Seller; provided, that such separate and distinct treatment is lawful and
Seller shall in no event fail to provide at least the same protection to Buyer
on such goods as Seller provides to its other customers in connection with such
similar Remedial Actions. Further, Buyer may require Seller to provide support
in any Remedial Action, regardless of whether Seller manufactured a good or
sold or distributed a good manufactured by a third party to Buyer.
e. If Seller
breaches any of the foregoing warranties, Buyer shall have the right, in
addition to exercising all other rights Buyer has under the Contract, Uniform
Commercial Code, and any other applicable statutes or laws, to take the
following actions, at Buyer’s option and without liability: (i) retain the
defective goods in whole or in part with an adjustment in the price for the
goods, as determined by Buyer, in Buyer’s sole discretion; (ii) require Seller
to repair or to replace the defective goods in whole or in part at Seller’s
sole expense, including all shipping, transportation, installation, and any
similar costs, as determined by Buyer, in Buyer’s sole discretion; (iii)
correct or replace the defective goods with similar items and recover the total
cost relating thereto from Seller, including the cost of product recalls, as
determined by Buyer in Buyer’s sole discretion; or (iv) reject the defective
goods.
f. These
warranties shall survive inspection, test(s) / testing, delivery, acceptance,
use, and payment by Buyer, and shall inure to the benefit of Buyer, Buyer’s
successors, assigns, customers, and the users of Buyer’s goods and services.
These warranties may not be limited or disclaimed. Payment for goods or
services by Buyer will not constitute acceptance of the goods / services or a
waiver of any warranty claim.
If requested by Buyer, Seller shall promptly furnish
to Buyer in such form and detail as Buyer may direct: (a) a list of all
ingredients, materials, specifications, overall composition (e.g., material
data sheets), assembly and wiring diagrams, and component part descriptions
related to the goods provided by Seller to Buyer; (b) the quantities of each of
the foregoing; and (c) information concerning any changes in or additions to
any of the foregoing; for the avoidance of doubt, Seller shall provide any and
all of the foregoing information to Buyer promptly when requested by Buyer and
in such form as requested by Buyer, regardless of whether Seller manufactured
the relevant goods or sold or distributed the relevant goods to Buyer, and with
respect to (c), Seller has an affirmative obligation to keep Buyer proactively
informed of and updated on any changes in or additions to the foregoing,
without any obligation of Buyer to request such information or updates. Prior
to and with the shipment of the goods, Seller agrees to furnish to Buyer all
legally required warnings and notices in writing (including, e.g., all
appropriate labels on the goods, containers, packaging materials, etc.) of any
hazardous material(s) and / or similar material(s) that is / are ingredient(s)
or part(s) of any of the goods, together with any and all such special handling
instructions, as may be necessary or required to advise carriers, Buyer, and
their respective employees of how to exercise the measure of care and
precaution that will best prevent bodily injury or property damage in the
handling, transportation, processing, use, or disposal of the goods,
containers, and packaging shipped to Buyer. Seller shall fully comply with all
applicable laws in all jurisdictions, domestic and foreign, where the goods are
used or sold, including, but not limited to, laws regarding, e.g.: product
safety; product content and / or composition; manufacturing byproducts or
impacts of or from the goods; and any warning labels or other alerts that must
be given either to Buyer or to any end user of the goods supplied by Seller to
Buyer, regardless of whether Seller manufactured the goods or sold or
distributed the goods from a third party to Buyer. Such laws include, but are
not limited to, the U.S. Toxic Substances Control Act and European Union
Directive 2000/53/EC.
Buyer may, without liability, immediately terminate
its Purchase Order(s) and / or any other agreement(s), including, e.g., this
Contract, with Seller in any of the following events or any other comparable
events: (a) insolvency of Seller; (b) filing of a voluntary petition in
bankruptcy by Seller; (c) filing of any involuntary petition in bankruptcy
against Seller; (d) appointment of a receiver or trustee over Seller or the
assets of Seller; or (e) execution of an assignment for the benefit of
creditors by Seller; provided, that such petition, appointment, or assignment
is not vacated or nullified within fifteen (15) days of such event. Seller
shall reimburse Buyer for any and all costs incurred by Buyer in connection
with any of the foregoing, including, but not limited to, all attorneys’ and
other professional fees and costs, expert witness fees and costs, and any other
similar fees and costs, as determined by Buyer in Buyer’s sole discretion.
Seller shall, at Seller’s sole cost and expense, take
such actions as are necessary or appropriate to ensure the uninterrupted supply
of goods to Buyer during any event or circumstance that could interrupt or
delay Seller’s performance under this Contract, including any labor disruption,
whether or not resulting from the expiration of Seller’s labor contracts (and
whether or not such occurrence constitutes a Force Majeure Event hereunder).
Seller shall notify Buyer at least one hundred eighty (180) days before the
termination or expiration of any collective bargaining or other labor agreement
that relates to Seller’s personnel involved in the production or delivery of
the goods. If a production stoppage at Buyer or Buyer’s customer is caused by a
breach of warranty or product recall of the goods, or any other cause
attributable to Seller (other than for a Force Majeure Event as set forth in
Paragraph 10), then, in Buyer’s sole discretion and at Buyer’s option (but not
as Buyer’s exclusive remedy), Buyer may levy charge(s) against Seller until
full production resumes (and Seller agrees that Seller shall promptly pay such
charge(s)), including, but not limited to, any per-hour charges and / or
per-day charges that Buyer demands while production is stopped or only
partially running.
Seller shall promptly provide written notice to Buyer
of any of the following events or occurrences, or any facts or circumstances
reasonably likely to give rise to any of the following events or occurrences
(in no event later than two (2) business days after learning of any such events
or occurrences, or no later than two (2) business days after learning that any
such events or occurrences are planned or threatened for the future): (a) any
failure by Seller to perform any of Seller’s obligations under this Contract;
(b) any delay in delivery of goods or performance of services; (c) any defects
or quality problems relating to goods or to services; (d) any change in control
of Seller; (e) any deficiency in any of Buyer’s specifications, samples,
prototypes, or test results that were provided to Seller; (f) any failure by
Seller or by Seller’s sub-contractors or common carriers to comply with any
applicable law or regulation; (g) any litigation or arbitration brought against
Seller related to the goods or the services; (h) any actions taken or
investigations initiated by any governmental agency in connection with the
goods or the services; (i) any legal actions initiated against Seller by
governmental agencies or individuals regarding any illegal activities, including
fraud, abuse, false claims, or kickbacks; (j) any voluntary or involuntary
recalls of any goods; (k) any changes or adjustments in the tariff
classification code of the goods previously provided to Buyer; (l) any reason
to believe that the goods do not qualify for preferential duty treatment under
any free trade agreement, when those goods were previously certified as
originating; and / or (m) any relocation(s), closure(s), restructuring(s),
construction, disruption, and / or project(s) affecting any of Seller’s
facility / facilities, locations, supply chain, or real estate generally, as
well as any movement / re-allocation of equipment in or on such facility /
facilities, locations, supply chain, or real estate. In addition, Seller shall
promptly notify Buyer in writing of any other change that may be relevant to
Buyer, generally, including, e.g., in Seller’s authorized representatives,
insurance coverage, qualifications, certifications of any kind (including,
e.g., any professional or quality-related certifications), and / or any other
similar changes (in no event later than two (2) business days after learning of
any such events or occurrences, or no later than two (2) business days after
learning that any such events or occurrences are planned or threatened for the
future). Further, to the extent that any of the foregoing events or occurrences
outlined in (a) through (m) are yet to occur, or are planned or threatened to
occur by Seller or regarding Seller in the future, then Seller shall provide
written notice of such future or prospective events or occurrences with as much
prior written notice to Buyer as possible, with as much advance written notice
as is reasonably possible under the circumstances. If Buyer later learns of any
failure (e.g., any act or omission) of Seller to provide any notice under this
provision, then Buyer may recover all reasonable costs and damages caused by
such failure of Seller to provide notice, and, in addition to any and all other
rights available to Buyer under this Contract, Buyer may immediately and with
no liability terminate this Contract and / or any Purchase Order(s) with
Seller.
Seller shall promptly furnish Buyer with statements
accurately and fairly evidencing Seller’s financial condition as Buyer may,
from time to time, request (Seller shall furnish such statements in no event
later than two (2) business days after Buyer’s request). Without limiting the
foregoing, Seller shall furnish to Buyer copies of any quarterly and / or
annual financial statements delivered by Seller to any of its creditors within
seven (7) days following delivery of such financial statements to such
creditor. Seller shall promptly notify Buyer, in writing, of any and all events
that have had or may have a material adverse effect on Seller’s business or
financial condition (in no event later than two (2) business days after Seller
learns of such event(s)), including, but not limited to: any change in or
issues with any aspect of Seller’s supply base (including, e.g., any changes in
or issues with any of Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors); any change in management, sale,
lease, or exchange of a material portion of Seller’s assets; a change in
control of Seller; or the breach of any loan covenants or other material
obligations of Seller to its creditors.
a. Buyer
reserves the right, without liability, to terminate any or all agreement(s)
between Buyer and Seller (or any or all part(s) of any such agreement(s)),
including, but not limited to, these Terms, any Purchase Order(s), this
Contract, any supply agreement(s), or any other business or commercial
agreement(s) with Seller: (i) if Seller repudiates, threatens to breach, or
breaches any of these Terms, any additional terms and conditions specified by
Buyer on any Purchase Order(s), or any other terms of any other agreements with
Buyer, including, e.g., Seller’s warranties, as determined by Buyer in Buyer’s
sole discretion; (ii) if Seller fails to perform services or deliver goods as
specified by Buyer, as determined by Buyer in Buyer’s sole discretion; (iii) if
Seller fails to make progress so as to endanger timely and proper completion of
services or delivery of goods, as determined by Buyer in Buyer’s sole
discretion; (iv) if Seller and / or any of Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors violate(s) any applicable
forced labor, human trafficking, anti-corruption, or international trade laws,
as well as any other laws or regulations of any kind in any jurisdiction,
including, but not limited to, those referenced in this Contract, including,
e.g., Paragraph 31 (regarding “COMPLIANCE WITH LAWS; CODE OF CONDUCT”); (v) if
Seller fails to provide Buyer with assurance (to Buyer’s satisfaction, in
Buyer’s sole discretion) of Seller’s ability (or the ability of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors) to perform
timely any obligations under this Contract, including, e.g., under any Purchase
Order(s), including, without limitation, with respect to the delivery of goods
or the provision of services; (vi) if Seller fails to provide Buyer, within
three (3) days after Buyer’s request, with assurance (to Buyer’s satisfaction,
in Buyer’s sole discretion) of Seller’s financial and operational capability to
perform timely any of Seller’s obligations under this Contract; (vii) if Buyer
terminates for breach any Purchase Order(s) issued by Buyer to Seller in
accordance with the terms of such Purchase Order(s); or (viii) if Seller fails
to remain competitive with respect to price, quality, delivery, technology,
payment terms, customer support, or any other aspect of the relationship
between Buyer and Seller, as determined by Buyer in Buyer’s sole discretion. In
the event of a termination under this Subpart (a), Buyer shall be entitled to
recover from Seller, among other things, any and all costs (whether direct or
indirect and of any kind) incurred by Buyer in purchasing substitute goods or
services from an alternative seller. Additionally, in the event that an act of
termination by Buyer under this Subpart (a) is determined by an applicable
authority (e.g., a court of law) to be improper for any reason, the damages
available to Seller shall be limited to the damages that Seller would have been
entitled to receive if Buyer had terminated for convenience pursuant to these
Terms. Notwithstanding the foregoing, with respect to a breach or failure by
Seller as set forth in (i) through (iii), Buyer may decide to send written
notice of its intention to terminate to Seller to provide Seller with a cure
period of ten (10) days from the date of Seller’s receipt of the notice (or
such other length of cure period, as determined by Buyer in Buyer’s sole
discretion), if Buyer believes, in Buyer’s sole discretion, that Seller may be
able to cure such a breach or failure within the allotted cure period.
b. Buyer may,
without liability, terminate any or all agreement(s) and / or Purchase Order(s)
with Seller, including, but not limited to, this Contract, upon giving at least
five (5) days’ prior written notice to Seller, if Seller: (i) sells, or offers
to sell, a material portion of Seller’s assets; or (ii) sells or exchanges, or
offers to sell or exchange, or causes to be sold or exchanged more than twenty
percent (20%) of Seller’s stock or other ownership interest (or another amount
that effects a change in the control of Seller). Seller shall notify Buyer
immediately in writing in the event of the earlier of the entrance into an
agreement or the occurrence of an event, described above in this Subpart (b).
In the event that an act of termination by Buyer under this Subpart (b) is
determined by an applicable authority (e.g., a court of law) to be improper for
any reason, the damages available to Seller shall be limited to the damages
that Seller would have been entitled to receive if Buyer had terminated for convenience
pursuant to these Terms.
In addition to any other rights of Buyer to terminate
hereunder or under any Purchase Order(s), Buyer may, at Buyer’s option and
without liability, immediately terminate all or any part of Buyer’s
agreement(s) with Seller, including under any Purchase Order(s) and / or this
Contract, at any time and for any reason, by giving notice to Seller. If
applicable, upon such termination by Buyer, Seller may request only the
following amounts from Buyer, if owed by Buyer as Buyer shall determine in
Buyer’s sole discretion, as Seller’s sole remedy: (a) the contract price for
all conforming goods and services that have been delivered in accordance with
the Purchase Orders and these Terms; and (b) the actual costs of
work(s)-in-process and raw materials incurred by Seller at Buyer’s direction in
furnishing the goods or services under the terminated Purchase Orders or other
agreements, to the extent such costs are reasonable in amount, consistent with
what was directed by Buyer, and are properly allocable or apportionable under
generally accepted accounting principles to the terminated portion of the
agreements and Purchase Orders; less, however: (i) the sum of the reasonable
value or cost (whichever is higher) of any goods or materials used or sold by
Seller with Buyer’s written consent; (ii) the cost of any damaged or destroyed
goods or material; and (iii) any other offsets Buyer may have against Seller.
Buyer will make no payments for finished goods, services, work(s)-in-process,
or raw materials fabricated or procured by Seller in amounts in excess of those
authorized in firm delivery releases or otherwise directed by Buyer, nor for
any undelivered goods that are in Seller’s standard stock, nor for any goods
that are marketable to other customers. Payments made under this Paragraph
shall not exceed the aggregate price payable by Buyer for finished goods or
services that would be produced or performed by Seller under delivery or
release schedules outstanding at the date of termination. Except as provided in
this Paragraph and as expressly agreed by Buyer in writing, Buyer shall not be
liable for and shall not be required to make any payments to Seller, directly
or on account of claims by Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors, for any loss(es) of anticipated
profit, unabsorbed overhead, interest on claims, product development and
engineering costs, facility / facilities and equipment rearrangement costs or
rental, unamortized depreciation costs, capital expenditures or other
investments, general and administrative burden charges, or any other costs and
/ or damages of any type or nature. Within five (5) days from the effective
date of termination, Seller shall submit a comprehensive termination claim to
Buyer in writing, with sufficient supporting data and documentation to permit
Buyer’s audit, and Seller shall thereafter promptly furnish such supplemental
and supporting information and documentation as Buyer shall request. Buyer or
Buyer’s agents shall have the right to audit and examine all books, records,
facility / facilities, work, material, inventories, and other items relating to
any termination claim of Seller. If no claim is submitted within the five (5)-day
period, then any claims of Seller against Buyer shall be deemed waived and
released.
Immediately upon the effectiveness of a termination
notice delivered by Buyer to Seller hereunder, Seller shall, unless otherwise
directed by Buyer, and subject to Seller’s obligation to provide transition
cooperation to Buyer under Paragraph 32 (regarding “TRANSITION OF SUPPLY”): (a)
promptly terminate all performance under this Contract and under any
outstanding Purchase Order(s); (b) transfer title and deliver to Buyer all
finished goods completed prior to effectiveness of the notice of termination; and
(c) return to Buyer all property furnished by or belonging to Buyer (including,
e.g., Buyer’s Property, as defined herein) or dispose of such property in
accordance with Buyer’s instructions.
a. In addition
to Seller’s customer warranties, any express warranties set forth in the
Contract, any statutory warranties or any warranties implied by law, Seller
expressly warrants, represents, guarantees, and acknowledges that the goods
covered by any Purchase Order(s) and / or otherwise delivered to Buyer do not,
and are not claimed to, violate any intellectual property right of another
(including, but not limited to, patent, trademark, copyright, industrial design
right, or other proprietary right), and may be properly imported into the
United States or any other relevant country.
b. All work
product, including, but not limited to, any idea, invention, concept, design,
prototype, product configuration, process, technique, procedure, system, plan,
model, program, software or code, data, specification, drawings, diagram, flow
chart, documentation, or the like that are created in the course of Seller (or
any of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors) performing under any Purchase Order(s) and under this Contract
generally (e.g., in the context of request(s) for quote(s), design /
engineering work (and related correspondence), and any other interactions and /
or documents between Buyer and Seller), and any associated intellectual
property rights therein or therewith, are the sole and exclusive property of
Buyer. Seller agrees that all works of authorship created by Seller (or by any
of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors) in connection with each Purchase Order and under this Contract
generally (e.g., in the context of request(s) for quote(s), design /
engineering work (and related correspondence), and any other interactions and /
or documents between Buyer and Seller) are “works made for hire” on behalf of
Buyer as that term is used in connection with the U.S. Copyright Act. The term
“intellectual property” as used herein means all patents, patent applications,
patentable subject matter, copyrights, copyrightable subject matter, work of
authorship, derivative works, industrial designs, trademark, trade name, trade
dress, trade secrets, know-how, and any other subject matter, material, or
information that is proprietary or confidential, is considered by Buyer to be
proprietary or confidential, and / or that otherwise qualifies for protection
under any law providing or creating intellectual property rights, including
but, not limited to, the Uniform Trade Secrets Act. Seller hereby assigns to
Buyer ownership of all right, title, and interest (including moral rights) in
the work product and any associated intellectual property, and further agrees
to cooperate with Buyer and to assist in the preparation and execution of all
documents relating to any effort by or on behalf of Buyer to apply for, obtain,
maintain, transfer, register, or enforce any intellectual property right
related to any and all work product, works made for hire, goods, and / or
services at the request of Buyer and expense of Seller. For the avoidance of
doubt, Seller shall ensure that Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors shall fully comply with the foregoing
requirements.
c. Seller will
defend, hold harmless, and indemnify: Buyer; Buyer’s affiliates; Buyer’s
subsidiaries; Buyer’s parents; Buyer’s successors; and Buyer’s and Buyer’s
affiliates’, subsidiaries’, parents’, and successors’ directors, officers,
employees, and customers against any claims of infringement (including, but not
limited to, patent, trademark, copyright, industrial design right, or other
proprietary right, or misuse or misappropriation of trade secret(s)) and
resulting damages and expenses (including attorneys’ and other professional
fees) arising in any way in relation to the goods or services provided by
Seller (or by any of Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors) to Buyer, including such claims where
Seller has provided only part of the goods or services; and Seller expressly
waives any claim against Buyer that such infringement arose out of compliance
with Buyer’s specifications.
d. Seller is
solely and exclusively responsible for any costs, losses, fines, or penalties
(including attorneys’ fees) resulting from the seizure, re-export, or
destruction of counterfeit (or allegedly counterfeit) goods or goods subject to
(or allegedly subject to) an exclusion order by U.S. Customs & Border
Protection (“CBP”) or other customs authorities.
e. Seller
hereby agrees that: (i) Buyer and / or Buyer’s sub-contractor(s) has / have the
right to repair, reconstruct, or rebuild the specific goods delivered without
payment of any royalty to Seller (or to any of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors); and (ii) parts
manufactured based on Buyer’s drawings and / or specifications may not be used
for Seller’s own use (or for the use of any of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors) or sold to
third parties without Buyer’s prior express written authorization.
f. For the
avoidance of doubt, Seller retains all intellectual property: (i) to which
Seller held rights prior to the date of this Contract; or (ii) that was / were
developed independently by Seller and not in furtherance of this Contract,
including any Purchase Order(s). Nothing contained in the Contract nor any
Purchase Order(s) shall be construed as granting any property right(s), by
license or otherwise, in Buyer’s intellectual property, and Seller (and
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors) may not use any of Buyer’s intellectual property other than to
manufacture and supply goods and / or services to Buyer pursuant to and in full
compliance with this Contract.
g. In addition
to the foregoing, Seller’s obligations under this Paragraph 20 will apply to
any work product and / or intellectual property created by consultants or
independent contractors of Seller as if such consultants or independent
contractors were employees of Seller. Seller will contractually bind any such
consultants or independent contractors to contractual terms sufficient to
enforce such obligations.
a. Unless
determined otherwise by Buyer in Buyer’s sole discretion, the protections
provided for in this Paragraph shall be treated as supplementing the terms of
any separate confidentiality and / or nondisclosure agreement(s) between Buyer
and Seller. Nothing contained in these Terms shall be construed as abrogating
any protections to which Buyer otherwise may be entitled under the terms of
another agreement regarding confidentiality and nondisclosure.
b. As used in
these Terms, “Confidential Information” shall mean any and all technical and
business information provided by Buyer (or Buyer’s subsidiaries and / or
affiliates) to Seller, including but not limited to: (i) patent and patent
applications; (ii) trade secrets; and (iii) proprietary information of Buyer,
Buyer’s subsidiaries and / or affiliates, or Buyer’s business partners,
including, e.g., ideas, techniques, sketches, drawings, works of authorship,
models, inventions, know-how processes, apparatuses, equipment, algorithms,
software programs, software source documents, and formulas related to the past,
current, future, and proposed products and services, and including, without
limitation, their respective information concerning research, experimental
work, development, design details and specifications, engineering, financial
information, procurement requirements, purchasing, manufacturing, customer
lists, customer information, investors, employees, business and contractual
relationships, business forecasts, sales and merchandising, marketing plans,
and information Buyer provides regarding third parties.
c. Seller
agrees that, at all times and notwithstanding any termination or expiration of
this Contract, Seller will hold in strict confidence and not disclose
Confidential Information of Buyer to any third party, except as approved in
writing by Buyer, and that Seller will use the Confidential Information for no
purpose other than performance of Seller’s contractual obligations to Buyer.
Seller shall permit access to Confidential Information to only those of
Seller’s employees or authorized representatives having a need to know and who
have signed confidentiality agreements or are otherwise bound by
confidentiality obligations at least as restrictive as those contained herein.
Seller may not modify, reverse engineer, decompile, create other works from the
intellectual property or sensitive information of Buyer, or disassemble any
software programs contained in the Confidential Information without the prior
written consent of Buyer. Seller is responsible for any breach regarding
Confidential Information and any provision related thereto, and is further
responsible for any such breach by: Seller’s employees and representatives;
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and
sub-contractors; employees and representatives of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and sub-contractors; and any third
parties, to which or to whom Seller has shared Confidential Information.
d. Seller shall
immediately notify Buyer in writing upon discovery of any loss or unauthorized
disclosure of Buyer’s Confidential Information.
e. Upon written
request of Buyer, Seller shall promptly return all documents and other tangible
materials representing Buyer’s Confidential Information and all copies thereof.
f. Seller
recognizes and agrees that nothing contained in this Contract shall be
construed as granting any property right(s), by license or otherwise, to any
Confidential Information disclosed pursuant to this Contract, or to any
invention or any patent, copyright, trademark, or other intellectual property
right that has issued or that may issue, based on such Confidential
Information. Seller shall not make, have made, use, or sell for any purpose any
product or other item using, incorporating, or derived from Buyer’s
Confidential Information.
g. Seller
acknowledges that a breach of this Paragraph will cause irreparable damage to
Buyer and hereby agrees that Buyer shall be entitled to injunctive relief, as
well as such further relief as Buyer may be entitled to, by law, equity, or
contract.
h. Seller’s
obligations under this Paragraph will survive termination or expiration of the
Contract. Seller’s obligations under this Paragraph shall terminate only when
Seller can demonstrate that the Confidential Information in question: (i) was
in the public domain at the time it was communicated to Seller; (ii) entered
the public domain subsequent to the time it was communicated to Seller through
no fault of Seller; (iii) was in Seller’s possession free of any obligation of
confidence at the time it was communicated to Seller; (iv) was rightfully
communicated to Seller free of any obligation of confidence subsequent to the
time it was communicated to Seller; or (v) it was developed by employees or
agents of Seller independently of and without reference to any information
communicated to Seller.
i. In the
event that Seller is compelled by law, court order, or mandatory request from
another government body to disclose Confidential Information, Seller shall
promptly inform Buyer in writing of such an event and provide Buyer a
reasonable opportunity to resist communication of the Confidential Information,
and, to cooperate with Buyer in seeking a protective order or other appropriate
measure to ensure limited disclosure of the Confidential Information.
j. ALL
CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”. BUYER MAKES NO WARRANTIES,
EXPRESS, IMPLIED, OR OTHERWISE, REGARDING THE ACCURACY OR COMPLETENESS OF THE
CONFIDENTIAL INFORMATION.
k. Seller
hereby agrees not to communicate any information to Buyer in violation of the
proprietary rights of any third party.
l. Seller
hereby agrees not to export, directly or indirectly, any technical data
acquired from Buyer pursuant to this Contract or any product utilizing any such
data to any country for which the U.S. Government or any agency thereof at the
time of export requires an export license or other governmental approval
without first obtaining such license or approval.
m. Promptly upon
the expiration of this Contract, the earlier termination of this Contract, or
whenever requested by Buyer, Seller shall, as directed by Buyer: (i) return to
Buyer or destroy all documents and tangible materials (and any copies)
containing, reflecting, incorporating, or based on Buyer’s Confidential
Information; or (ii) permanently erase all of Buyer’s Confidential Information
from Seller’s computer systems. Further, promptly upon Buyer’s written request,
Seller shall certify in writing to Buyer that it has fully complied with the
requirements of this Paragraph.
Seller shall indemnify and hold Buyer, Buyer’s
affiliates, Buyer’s subsidiaries, as well as Buyer’s, Buyer’s affiliates’, and
Buyer’s subsidiaries’ directors, officers, employees, invitees, agents, and
customers (“Indemnitees”) harmless from and against any and all liability /
liabilities, claims, damages, fines, penalties, losses, actions, judgments,
demands, and expenses (including, e.g., attorneys’ and other professional fees
and costs) (collectively, “Liabilities”) that is / are incurred by Indemnitees and
/ or brought against Indemnitees by reason of or on account of any breach of
contract (including, but not limited to, these Terms and / or any Purchase
Order(s)), violation(s) of law or regulation, warranty claim(s), product recall
claim(s), product liability claim(s), injuries to persons (including death), or
damage to property that is / are caused by Seller or any of Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors
and / or that is / are caused by any employees, agents, or invitees of Seller
or of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors, or in any way attributable to the goods supplied by or the
performance of services provided by Seller and / or Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors, including
Seller’s or their employees, agents, or invitees. Seller shall also indemnify
and hold Indemnitees harmless from and against any and all Liabilities asserted
against Indemnitees (whether civil or criminal) by any governmental authority
or third party of any kind relating to, arising out of, or connected in any way
with any of the goods supplied or services provided by Seller and / or by
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors to Buyer, whether such Liabilities relate to personal injury,
damage, destruction, infringement (including any intellectual property and / or
patent infringement), violation of law or regulation, or any other tort, contract,
administrative, or criminal claim, whether deemed intentional, negligent, or
otherwise. With respect to Buyer’s and Indemnitees’ right to indemnification
hereunder, Buyer shall have the right to engage counsel of Buyer’s choosing and
to have Seller pay all of such counsel’s costs and expenses, including all
expert witness fees, arbitration fees, mediation fees, facilitation fees, and
any other costs of the dispute resolution process, including any and all
litigation costs.
a. Through the
term of this Contract and for no less than five (5) years after the termination
of this Contract or any remaining Purchase Order (whichever comes later)
between Buyer and Seller, Seller shall maintain insurance coverage with
carriers acceptable to Buyer (with ratings of no less than an A.M. Best rating
of “A-” or better) and in the amounts set forth herein. Prior to initiating any
work for Buyer under this Contract (e.g., by delivering any goods to Buyer or
by performing any services for Buyer) and for the life of this Contract and
consistent with its terms and conditions, Seller shall: (i) provide to Buyer
current certificate(s) (e.g., certificate(s) of insurance) showing compliance
with the insurance requirements set forth herein, including endorsement(s)
evidencing coverage required herein; and (ii) include Buyer as an additional
insured party, on a primary and non-contributory basis, on all available,
applicable insurance policies (with respect to liability arising out of
Seller’s performance under this Contract). The certificates shall provide that
Buyer will receive thirty (30) days’ prior written notice from the insurer of
any termination or change in the amount or scope of coverage. Seller’s
furnishing of certificates of insurance or purchase of insurance shall not
release Seller of its obligations or liabilities under this Contract. Seller
shall specifically furnish certificates of insurance to the following Buyer
entity and address, unless otherwise instructed by Buyer: Wheel Pros, LLC dba
Hoonigan, 5670 Greenwood Plaza Blvd. Suite 400, Greenwood Village, CO 80111.
Seller shall also furnish certificates of insurance to Seller’s key contacts
with Buyer via email. All of the insurance required hereunder shall be endorsed
to contain a waiver of subrogation against Buyer, any Indemnitees, and Buyer’s
insurer(s), and Seller shall provide evidence thereof to Buyer. Seller waives
Seller’s right for Seller’s insurer to subrogate against Buyer, any
Indemnitees, and Buyer’s insurer(s) for any claims Seller’s insurer may have
paid.
b. For purposes
of this Contract, the insurance coverage required (“Insurance”) is as follows:
(i) Workers’ Compensation: statutory limits for the state(s) in which the
contract is to be performed (or evidence of authority to self-insure); (ii)
Employer’s Liability: USD$1,000,000 each accident for bodily injury by accident
and USD$1,000,000 each employee for bodily injury by disease; (iii) Commercial
General Liability covering liability arising from premises, operations,
independent contractors, products / completed operations, products liability,
personal injury and advertising injury, and liability assumed under an insured
contract: USD$1,000,000 each occurrence and USD$2,000,000 aggregate; (iv)
Automobile Liability (including owned, non-owned, and hired vehicles):
USD$1,000,000 combined single limit; (v) Umbrella or Excess Liability providing
USD$5,000,000 limit in excess of and follow form of coverages in (ii), (iii),
and (iv), above; (vi) if applicable, Maritime coverage: USD$5,000,000 any one
conveyance; (vii) if applicable, Professional Liability / E & O, including
Manufacturer’s E & O, with a limit of USD$5,000,000 each occurrence and
aggregate; and (viii) cybersecurity / cyber liability coverage with a limit of
USD$5,000,000 in the aggregate, including coverage for network and information
security liability, regulatory / compliance defense and penalties, breach
response, crisis management and public relations, cyber extortion (e.g.,
ransomware), and business interruption and extra expenses.
c. For the
avoidance of doubt, the Insurance that Seller must carry under this Contract
shall not be construed in any way to limit Seller’s liability to Buyer.
Unless otherwise agreed to by Buyer in writing,
Seller, at Seller’s sole expense, shall furnish, keep in good condition, and
replace when necessary all machinery, equipment, tools, jigs, dies, gauges,
fixtures, molds, patterns, and other items (“Seller’s Property”) necessary for
the production of the goods. The cost of changes to Seller’s Property necessary
to make design and specification changes authorized by Buyer shall be governed
by a separate Purchase Order between Buyer and Seller; otherwise, no such costs
may be imposed on Buyer. Seller shall insure Seller’s Property with full fire
and extended coverage insurance for its replacement value. Seller grants Buyer
an irrevocable option to take possession of and / or title to Seller’s Property
that is special for the production of the goods upon payment to Seller of its
net book value less any amounts that Buyer has previously paid to Seller for
the cost of such items; provided, however, that this option shall not apply if
Seller’s Property is used to produce goods that are the standard stock of
Seller or if a substantial quantity of like goods are being sold by Seller to
others.
a. All
supplies, materials, tools, jigs, dies, gauges, fixtures, molds, patterns,
equipment, and all other items furnished by Buyer, either directly or
indirectly, to Seller to perform Seller’s obligations to Buyer, or for which
Seller has been reimbursed by Buyer (whether directly or indirectly reimbursed,
including, e.g., where Seller has recovered costs via overhead or amortization
included in a good’s or component’s piece price), shall be and remain the property
of Buyer and shall be held by Seller on a bailment basis (“Buyer’s Property”).
Seller acknowledges that any commercial or proforma invoices issued by Buyer
for customs and foreign trade purposes shall not act to transfer ownership in
Buyer’s Property. Seller shall bear the risk of loss of and damage to Buyer’s
Property. Buyer’s Property: (i) shall at all times be properly housed and
maintained by Seller, at Seller’s sole expense; (ii) shall not be used by
Seller for any purpose other than the performance of Seller’s obligations to
Buyer; (iii) shall be deemed to be personalty (i.e., the personal, movable
property of Buyer); (iv) shall be conspicuously marked by Seller as the
property of Buyer; (v) shall not be commingled with the property of Seller or
with that of a third party; and (vi) shall not be moved from Seller’s premises
without Buyer’s prior written approval. Unless otherwise agreed to in writing
by Buyer, Seller at Seller’s sole expense shall keep Buyer’s Property in good
condition and repair, including repair necessitated by wear and tear and other
usage by Seller. In the event that it becomes necessary, as determined by
either Buyer or Seller, to replace any of Buyer’s Property due to normal use by
Seller, or otherwise, said replacement of Buyer’s Property shall be at the sole
expense of Seller and said replacement of Buyer’s Property shall remain the
property of Buyer (i.e., Buyer’s Property). Buyer shall have the right, as
needed, to enter Seller’s premises (or the premises of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors) at any time to
inspect Buyer’s Property and Seller’s records with respect thereto, and Seller
shall ensure Buyer has full access to Seller’s premises (and the premises of
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors) as and when needed by Buyer. Upon the request of Buyer,
Buyer’s Property shall be immediately released to Buyer by Seller, or shall be
immediately delivered to Buyer by Seller DDP to any location designated by
Buyer (DDP as defined under Incoterms® 2020 (or whichever Incoterms® edition is
most current, as may be updated from time to time)), or as otherwise specified by
Buyer in writing. When permitted by law, Seller waives any lien or other rights
that Seller might otherwise have on any of Buyer’s Property for work performed
on Buyer’s Property or otherwise.
b. Seller
acknowledges and agrees that: (i) Buyer may not be the manufacturer of Buyer’s
Property, nor a given manufacturer’s agent or a dealer thereof; (ii) Buyer is
bailing Buyer’s Property to Seller for Seller’s benefit; (iii) Seller has
inspected Buyer’s Property and is satisfied that Buyer’s Property is suitable
and fit for its purposes; and (iv) BUYER HAS NOT MADE AND DOES NOT MAKE ANY
WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OF IMPLIED, AS TO THE
FITNESS, CONDITION, MERCHANTABILITY, DESIGN, OR OPERATION OF BUYER’S PROPERTY,
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Buyer shall not be liable to Seller
for any loss, damage, injury, or expense of any kind or nature caused, directly
or indirectly, by Buyer’s Property, including, without limitation, its use or
maintenance, or its repair, service, or adjustment, or by any interruption of
service, or for any loss of business whatsoever or howsoever caused, including,
without limitation, any anticipatory damages, loss of profits, or any other indirect,
special, or consequential damages.
c. Seller
authorizes Buyer to file a UCC-1 financing statement or similar document with
the appropriate filing authority to give notice of Buyer’s ownership interest
in Buyer’s Property. Failure to file a financing statement will not alter or
amend Buyer’s ownership rights to Buyer’s Property.
d. Promptly
upon Buyer’s request (but in no event more than one (1) business day after
Buyer’s request), Seller shall provide Buyer with a complete and accurate
written inventory of all of Buyer’s Property in Seller’s possession (or in the
possession of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and
/ or sub-contractors).
Seller will sell (and will ensure that Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors
will sell) to Buyer goods necessary for Buyer to fulfill Buyer’s current model
service and requirements for replacement parts at the price(s) set forth in
applicable Purchase Order(s). If the goods are systems or modules, Seller will
sell (and will ensure that Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors will sell) the components or parts that
comprise the system(s) or module(s) at price(s) that shall not, in the
aggregate, exceed the price of the system(s) or module(s), less assembly costs.
During the fifteen (15)-year period after Buyer completes current model
purchases, Seller will sell (and will ensure that Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors will sell) goods
to Buyer to fulfill Buyer’s past model service and requirements for replacement
parts. Unless otherwise agreed to by Buyer in writing, the price(s) during the
first ten (10) years of this Contract shall be those in effect at the
conclusion of current model purchases. For the remainder of the Contract, the
price(s) for goods shall be as agreed to by the Parties mutually in writing.
When requested by Buyer, Seller shall make service literature and other
materials available at no additional charge to support Buyer’s service part
sales activities (and Seller will ensure that Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors shall do the
same).
The rights and remedies reserved to Buyer in this
Contract shall be cumulative with, and additional to, all other or further
remedies provided in law or equity. Without limiting the foregoing, should
Seller and / or Seller’s subsidiaries, affiliates, suppliers, sub-suppliers,
and / or sub-contractors, as well as any goods and / or services provided to Buyer
by Seller and / or by Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors under this Contract, fail to conform
to, or to comply with, the terms, specifications, warranties, or any other
provision(s) or requirement(s) as set forth in this Contract or under
applicable law, Buyer may notify Seller at any time in writing, and Seller
shall, immediately on request by Buyer in writing, fully reimburse Buyer for
any and all direct, indirect, incidental, consequential, and / or special
damages, as well as for any other damages, costs, expenses, and / or losses of
any kind (including all legal fees, expert fees, and any other fees or costs),
caused by any such failure(s) or instance(s) of nonconformity or
non-compliance, including, but not limited to, any and all such damages, costs,
expenses, and / or losses incurred by Buyer: (a) in inspecting, sorting,
repairing, and / or replacing such nonconforming or non-complying goods; (b)
resulting from production interruptions; (c) in conducting recall campaigns or
other corrective service actions; (d) in needing to have any services corrected
or re-performed; and / or (e) due to claims for personal injury (including
death) and / or property damage. For the avoidance of doubt, if requested by
Buyer in writing, Seller will enter into a separate agreement for the
administration or processing of warranty chargebacks for failure(s) to conform
and / or for nonconforming goods and / or services.
a. Seller
(including Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and /
or sub-contractors) and Seller’s employees, representatives, and agents (and
the employees, representatives, and agents of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors) shall comply
with all applicable customs, export control, and related requirements in the
United States and any other jurisdictions where Seller (and Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors)
operate(s) or may need to operate to fulfill Seller’s obligations under this
Contract, and shall maintain all necessary policies and procedures to that
effect. Any credits or benefits resulting or arising from the Parties’
agreement(s), including, e.g., under any Purchase Order(s), including, e.g.,
trade credits, export credits, or the refund of duties, taxes, or fees, shall belong
to Buyer, which Seller shall take all steps necessary to achieve and to ensure
(and which Seller shall ensure Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors will achieve and ensure, as well).
Seller shall provide (and shall ensure that Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors shall provide) all
information necessary (including written documentation, electronic transaction
records, certificates of origin, and the correct HTS tariff codes) to permit
Buyer to receive such benefits or credits, as well as to fulfill all
customs-related obligations, including country of origin marking, import
valuation, tariff classification, product-labeling requirements, and local or
regional content requirements arising under national customs laws or Free Trade
Agreements (“FTAs”), whenever applicable. Where applicable, Seller shall
undertake such arrangements (and shall ensure that Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors shall undertake
such arrangements) as necessary for the goods to be covered by any duty
deferral or free trade zone program(s) of the country of import. Additionally,
Seller shall be exclusively responsible for obtaining any export licenses or
other authorizations necessary for the export of the goods, unless otherwise
required by applicable law or otherwise agreed in writing by the Parties, in
which event Seller shall provide (and shall ensure that Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors shall provide)
any information that Buyer or the relevant governmental authorities may deem
necessary to enable Buyer to obtain such licenses, permits, or
authorization(s). For the avoidance of doubt, if Seller (or Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors)
fail(s) to comply with any of the foregoing requirements at any time, then
Buyer may, in Buyer’s sole discretion, send Seller written notice of such failure
to comply, giving Seller three (3) days to correct such failure (or such
different period of time to correct such failure, as determined in Buyer’s sole
discretion), and if Seller subsequently fails to correct or refuses to correct
such failure within such time period designated by Buyer, then Buyer may,
without liability, terminate the applicable Purchase Order and / or this
Contract, in Buyer’s sole discretion.
b. Prior to and
with the shipment of the goods, Seller shall furnish (and shall ensure that
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors shall furnish) to Buyer, in the form of a Certification of
Country of Origin provided by Buyer, complete information regarding the country
of origin of any and all goods. Seller has a perpetual, on-going obligation
(including on behalf of Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors) promptly to provide Buyer with updated
information regarding the country of origin of any and all goods, and any other
relevant information that Buyer requires under applicable law, and Seller
further shall promptly furnish to Buyer complete, updated information regarding
country of origin of any and all goods, whenever such updated information
becomes available (in no event later than three (3) business days after Seller
knew of, or should have known of, such information). If requested by Buyer,
Seller shall promptly furnish to Buyer, in such form and detail as Buyer may
direct, any further information regarding country of origin that Buyer may
require. Seller acknowledges that, in complying with the foregoing, Seller
shall work proactively and perpetually with Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors to ensure that Seller
consistently and perpetually has all information necessary to comply with this
provision, for Buyer’s benefit and in compliance with all applicable laws and
regulations. For the avoidance of doubt, Seller shall ensure all communications
and documents required under this provision are provided in the English
language to Buyer (including all such communications and documents that must be
provided by Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and /
or sub-contractors).
In addition to any right of setoff or recoupment
provided by law, all amounts due to Seller shall be considered net of
indebtedness of Seller (and Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors) to Buyer (and Buyer’s affiliates /
subsidiaries), and Buyer shall have the right to set off against or to recoup
any and all sums that Seller (and Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors) owe(s) to Buyer (and Buyer’s
affiliates / subsidiaries) under any Purchase Order(s) or otherwise against and
from any amounts due to Seller (and Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors) from Buyer (and Buyer’s
affiliates / subsidiaries). If an obligation of Seller (or any of Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors)
to Buyer (or any of Buyer’s subsidiaries or affiliates) is disputed,
contingent, or unliquidated, then Buyer (or any of Buyer’s subsidiaries or affiliates)
may defer payment of all or any portion of the amount(s) due until such
obligation is resolved. Without limiting the generality of the foregoing and by
way of example only, in the event of a bankruptcy of Seller, if all of the
Purchase Orders between Buyer and Seller have not been assumed, then Buyer may
defer payment to Seller, via an administrative hold or otherwise, for goods
against potential rejection and other damages.
Seller shall ensure that Seller will not (and Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors
will not) in any manner advertise or publish the fact that Seller (or Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors)
has / have contracted to furnish Buyer with any goods or services without first
obtaining the prior written consent of Buyer, and Seller shall also ensure that
Seller will not (and Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors will not) use any trademarks or trade
names of Buyer in Seller’s advertising or promotional materials (or in the
advertising or promotional materials of Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors).
a. GENERAL.
Seller shall ensure at all times that Seller (and Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors), and any goods
or services supplied or provided by Seller (or by any of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors), shall fully
comply with all applicable laws, rules, regulations, orders, conventions,
ordinances, and standards of the country(ies) of destination or that relate to
the manufacture, distribution, labeling, transportation, importation,
exportation, licensing, approval, or certification of the goods and / or
services, including, but not limited to, those relating to environmental matters,
wages, hours and conditions of employment, sub-contractor selection,
discrimination, occupational health / safety, motor vehicle safety,
anti-bribery and anti-corruption, and trade laws. Seller shall obtain and
maintain (and shall ensure that all of Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors obtain and maintain) all
permits necessary under this Contract, including, e.g., any permits required
for the import of goods or any raw materials and other manufacturing parts used
in the production and manufacture of the goods, and the shipment of hazardous
materials, as applicable.
b. FORCED LABOR
AND HUMAN TRAFFICKING. Seller further represents that neither Seller nor any of
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors have employed, are employing, or will employ slave labor,
prison labor, child labor, labor from persons subject to human trafficking, or
any other form of forced, involuntary, and / or illegal labor in the supply of
goods or provision of services. At Buyer’s request, Seller shall promptly
certify in writing Seller’s compliance with the foregoing and with any similar
subject matter about which Buyer requests Seller’s written certification of
compliance, and Seller shall further ensure that Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors will equally and
promptly provide any and all such certifications, whenever requested by Buyer.
Buyer reserves the right, without liability, to terminate all or any part(s) of
Buyer’s agreement(s) with Seller, including, but not limited to, any Purchase
Order(s) and / or these Terms, if Seller or any of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors engage(s) in any
of the aforementioned, prohibited activities, or if Seller or any of Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors
fail(s) to fulfill any obligations set forth under this Contract. Seller shall
indemnify and hold Buyer and Indemnitees (as defined previously herein)
harmless from and against any and all government inquiries or enforcement
actions, liability claims, demands, and / or expenses (including attorneys’ or
other professional fees and costs) arising from or relating to Seller’s
non-compliance with any of the foregoing (including any non-compliance by any
of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors), including, but not limited to, matters arising under U.S.
customs laws, U.S. government contracting laws, and anti-slavery and human
trafficking legislation in the United Kingdom and any and all other
jurisdictions that are or may be / may later become relevant under this
Contract.
c. ANTI-CORRUPTION
AND INTERNATIONAL TRADE. Buyer reserves the right, without liability, to
terminate any or all of Buyer’s agreements with Seller (including, e.g., any
Purchase Order(s), these Terms, and any other business or commercial
agreement(s)) or any or all parts of any of Buyer’s agreements with Seller, if
Seller (or any of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers,
and / or sub-contractors) violate(s) or is / are reasonably suspected of
violating: (i) the Foreign Corrupt Practices Act (“FCPA”) or other applicable
laws prohibiting bribery and other corrupt transactions; (ii) the U.S. Bank
Secrecy Act, as amended by the USA PATRIOT Act and other applicable Anti-Money
Laundering (“AML”) laws; (iii) the U.S. Export Administration Regulations
(“EAR”), the U.S. International Traffic in Arms Regulations (“ITAR”), U.S.
Anti-Boycott Regulations, and other applicable export control laws; (iv) the
various U.S. economic sanctions programs administered by the U.S. Department of
the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S.
Department of State; (v) any executive orders (including, e.g., the September
24, 2001, Executive Order Blocking Property and Prohibiting Transactions with
Persons Who Commit, Threaten to Commit, or Support Terrorism); and (vi) any
laws of similar effect applicable in the jurisdictions where Seller and / or
any of Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors conduct business now or may later conduct business (whether
pursuant to this Contract or otherwise), including, but not limited to, those
enumerated or mentioned elsewhere in this Contract. Seller shall indemnify and
hold Buyer and Indemnitees (as defined previously herein) harmless from and
against any government inquiries or enforcement actions, liability claims,
demands, and / or expenses (including attorneys’ or other professional fees and
costs) arising from or relating to Seller’s non-compliance with any of the
foregoing (including any non-compliance by any of Seller’s subsidiaries,
affiliates, suppliers, sub-suppliers, and / or sub-contractors).
d. CODE OF
CONDUCT. At any time requested by Buyer in writing (and at least annually),
Seller shall certify that Seller is in compliance with the Code of Conduct,
posted for viewing at https://wheelpros.com/supplier-code-of-conduct.html, as
amended from time to time without obligation of further notice to Seller.
Seller shall post the Code of Conduct in all facilities that supply any Buyer
entity and shall provide necessary management and employee training to ensure
compliance. Seller shall further ensure that Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors shall similarly comply with
the foregoing obligations.
e. LANGUAGE OF
CONTRACT & COMMUNICATION. For the avoidance of doubt, any and all
documents, paperwork, and communications of any kind under this Contract and
generally in the relationship between Buyer and Seller shall be in the English
language, and no other language besides the English language shall control.
Seller shall ensure that Seller (and Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors) fully complies with this
Paragraph at all times.
f. CYBERSECURITY.
At Seller’s sole expense, Seller must, on behalf of itself and all of Seller’s
affiliates and subsidiaries: (i) maintain risk-based cybersecurity programs and
best practices, supported by appropriate technical and operational measures,
including policies and procedures, to protect to the fullest extent reasonably
practicable the confidentiality, integrity, and availability of any and all of
Buyer’s systems and information, including, but not limited to, Confidential
Information, to prevent disruption of the supply of goods and / or services,
and to respond in a prompt and effective manner to any cybersecurity incident
that may compromise any or all of Buyer’s systems or information, including,
but not limited to, Confidential Information, or may disrupt the supply of
goods and / or services as contemplated under this Contract; (ii) maintain all
appropriate and / or applicable controls and practices in line with recognized
IT, security, and risk-management frameworks, including, but not limited to,
ISO 27001 or SOC 2; (iii) promptly, but by no later than two (2) days
subsequent to Seller’s first knowledge of an incident, notify Buyer of any
attempted or actual unauthorized possession, access, use, or knowledge of any
or all of Buyer's systems or information, including, but not limited to,
Confidential Information, by any person or entity that may become known or
suspected by Seller; (iv) promptly, but by no later than two (2) days
subsequent to Seller’s first knowledge of an incident, furnish full details of
the attempted or actual unauthorized possession, access, use, or knowledge,
with an on-going duty immediately to update such details to Buyer, as needed;
(v) assist Buyer and fully cooperate with Buyer in taking any and all actions
necessary to resolve fully any issue and in investigating or preventing the
recurrence of any attempted or actual unauthorized possession, access, use, or
knowledge of any or all of Buyer’s systems and information, including, but not
limited to, Confidential Information; (vi) promptly take any action and / or
adopt any other cybersecurity measures and related compliance requirements
identified by Buyer, in Buyer’s sole discretion and upon Buyer’s direction; and
(vii) promptly upon Buyer’s request, and at Seller’s sole expense, demonstrate
compliance with any or all of the foregoing through a third-party audit or
other reasonable measure directed by or, agreed upon by, Buyer, including,
e.g., through a questionnaire regarding, e.g., cybersecurity or quality risk
assessment, provided by Buyer to Seller. Seller shall also take all steps
necessary to ensure that Seller’s suppliers, sub-suppliers, and / or
sub-contractors comply with the foregoing, and Seller shall further take full
responsibility for any and all issues related to or arising from the foregoing
on behalf of itself and Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors.
g. NOTICE
OBLIGATIONS & AUDIT RIGHTS. For the avoidance of doubt, if Seller, on
behalf of itself and any of Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors, learns of any non-compliance,
threatened non-compliance, or risk of non-compliance with any of the foregoing
provisions, then Seller shall immediately notify Buyer and take all necessary
steps to ensure full compliance with the provisions of this Paragraph and this
Contract. Further, Buyer reserves the right to audit Seller to ensure Seller’s
full compliance with the provisions of this Paragraph and this Contract at any
time (including full compliance by Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors), with or without notice to
Seller, and Seller shall take all necessary steps to ensure that Buyer may
exercise Buyer’s audit rights, including with respect to auditing and ensuring
the compliance of any or all of Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors with the provisions of this Paragraph
and of this Contract, generally.
Upon the expiration or earlier termination of any
Purchase Order or this Contract for whatever reason, Seller agrees to take all
actions necessary in order to ensure that there is no interruption in the
supply of goods to Buyer regarding Buyer’s needs during any subsequent,
transitionary period, and Seller shall continue to fulfill all of Buyer’s needs
under the previously agreed terms, conditions, and specifications as set forth
under any applicable Purchase Order(s) and this Contract, as directed by Buyer.
Among other things, Seller agrees to take such actions as may be required by
Buyer to accomplish the transition from Seller to an “alternative seller”
(which expressly includes, but is not limited to, Buyer, a Buyer-owned
facility, or any Buyer-related entity or affiliate), including, without
limitation, the following:
a. Seller shall
promptly provide all notices and documents / documentation of any kind
necessary or desirable for Buyer to resource any Purchase Order(s) and / or
related agreements to an alternative seller at any time requested by Buyer.
b. In
furtherance of a transition to an alternative seller, Seller hereby grants to
Buyer, Buyer’s affiliates, agents, and sub-contractors an irrevocable,
perpetual, non-exclusive, fully paid-up, royalty-free, worldwide license to use
any and all of Seller’s intellectual property, including, e.g., drawings and
specifications (including drawings and specifications for applicable tooling),
to make, have made, reproduce, make derivatives of, use, import, export, and
sell the goods. Upon Buyer’s request, Seller agrees to provide all documents /
documentation necessary for Buyer’s use of such intellectual property.
c. Seller shall
maintain and provide a bank of goods, sufficient for Buyer’s needs and properly
stored at all times at Seller’s sole expense, to ensure that the transition to
any alternative seller chosen by Buyer will proceed smoothly, as determined and
/ or directed by Buyer. Seller shall sell and deliver such goods per standard
releases from Buyer, at the prices and terms all as were specified and agreed
by Buyer and Seller under applicable Purchase Order(s) for the goods and under
this Contract. To the extent Seller distributes or resells goods manufactured
by third parties to Buyer, and consistent with this provision, Seller shall
take any and all steps necessary to ensure Buyer is able to purchase all goods
that Buyer needs, as specified by Buyer in its sole discretion.
d. As directed
by Buyer, Seller shall provide overtime production, storage and / or management
of extra inventory, extraordinary packaging and transportation, and other
special services, at Seller’s sole expense, unless otherwise agreed in writing
by Buyer.
e. Seller shall
provide to Buyer all tooling and any other property furnished by or belonging
to Buyer (including, e.g., Buyer’s Property, as defined previously herein) or
any of Buyer’s customers in as good a condition as when received by Seller.
Buyer and any alternative seller reserve the right to access and to participate
actively during the disconnection or disassembly process for any Buyer property
(including, e.g., Buyer’s Property, as defined previously herein). The
location, time, and date of the exit shall be as specified by Buyer.
f. As directed
by Buyer and at Seller’s sole expense, Seller shall: (i) assign to Buyer any or
all supply contracts, agreements, and / or Purchase Orders, whether for raw
materials or components, or for finished goods; (ii) sell to Buyer, at Seller’s
cost, any or all perishable tooling, inventory, and / or work(s)-in-process
relating to any supply contracts, agreements, Purchase Order(s), and / or this
Contract; and / or (iii) sell to Buyer any of Seller’s property relating to any
supply contracts, agreements, Purchase Order(s), and / or this Contract, at a
price equal to the unamortized portion of the cost of such items, less any
amounts Buyer previously has paid to Seller for the cost of such items. Seller
shall provide documents / documentation supporting the original cost of any
unamortized items.
g. As directed
by Buyer and at Seller’s sole expense, Seller shall: (i) promptly provide all
requested information and documents / documentation regarding the goods and
Seller’s manufacturing process(es), including, e.g., bill-of-material data,
tooling and process detail(s), and sample(s) of the goods and components; (ii)
allow Buyer and any alternative seller to conduct on-site inspections of
Seller’s operations; and (iii) provide all notice(s) necessary or desirable for
Buyer to resource the manufacture and supply of the Goods to an alternate
seller.
h. Seller shall
ensure Seller’s full compliance with all of the foregoing, including full
compliance with all of the foregoing by Seller’s subsidiaries, affiliates,
suppliers, sub-suppliers, and / or sub-contractors.
In no event shall Buyer be liable to Seller (or
Seller’s subsidiaries, affiliates, suppliers, sub-suppliers, and / or
sub-contractors) for anticipated profits or for any special, punitive,
exemplary, incidental, indirect, or consequential damages, or any similar
damages or costs of any kind. Without limiting the foregoing, the Parties
further agree that, with respect to all other claims, Seller’s damages that
Seller may be entitled to recover from Buyer under this Contract shall be
limited to the lesser of: (a) the value of goods or services purchased by Buyer
from Seller in the two (2) weeks immediately preceding the alleged claim; or
(b) twenty-five thousand U.S. dollars (USD$25,000.00). For the avoidance of
doubt, nothing in this Paragraph 33 limits, waives, or reduces any of Seller’s
obligations or liabilities to Buyer under this Contract, including, without
limitation, Seller’s indemnification, defense, warranty, confidentiality,
intellectual property, insurance, or recall obligations.
The failure of Buyer at any time to require
performance by Seller of any of Seller’s obligations under this Contract shall
in no way affect Buyer’s right to require such performance by Seller at any
time thereafter, nor shall the waiver by Buyer, in Buyer’s sole discretion, of
a breach of any provision of this Contract by Seller constitute a waiver by
Buyer of any subsequent breach of the same or any other provision of this
Contract by Seller.
Unless otherwise specifically prohibited by applicable
law, Seller may not assign or delegate its rights or obligations under this
Contract without Buyer’s prior written consent. Any consent by Buyer to an
assignment shall not be deemed to waive Buyer’s right to recoupment from Seller
and / or Seller’s assigns for any claim arising out of or relating to this
Contract.
Seller and Buyer are independent contracting parties
and nothing in this Contract shall make either Party the agent or legal
representative of the other Party for any purpose whatsoever, nor does it grant
either Party any authority to assume or to create any obligation on behalf of
or in the name of the other Party.
a. For purposes
of this Paragraph, including all Subparts thereto, Buyer’s location shall be
the location identified in the Contract for the specific Buyer entity that
issued the applicable Purchase Order.
b. This
Contract and all other agreement(s) of the Parties shall be governed by and
construed according to the laws of the State of Delaware, or to the laws of any
country (and state / province, if applicable) that Buyer may otherwise specify
in writing, excluding the provisions of the United Nations Convention on
Contracts for the International Sale of Goods and any conflict of law
provisions that would require application of another choice of law. Without
limiting Subpart (c), the Parties agree that the state and federal courts
located in the State of Colorado shall be an available forum at Buyer’s option.
c. Any action
or proceedings by Buyer against Seller may be brought, at Buyer’s option, in
whichever court(s) that Buyer directs, and Seller consents to jurisdiction,
venue, and service of process in such court(s) in accordance with applicable
procedures. Any actions or proceedings by Seller against Buyer shall be brought
by Seller exclusively in the state or federal court(s) of the country (and
state / province, if applicable) where Buyer is located, based on the address
of Buyer on the applicable Purchase Orders.
d. In the event
that Buyer is faced with the potential for irreparable harm due to any acts or
omissions of Seller (and / or due to any acts or omissions of Seller’s
subsidiaries, affiliates, suppliers, sub-suppliers, and / or sub-contractors)
and Buyer pursues any action or dispute against Seller (or is already in the
midst of any action or dispute against or with Seller), Seller agrees that
Buyer is entitled to injunctive relief from the court(s) otherwise having
jurisdiction over the action or dispute pursuant to Subpart (c) of this
Paragraph, in which event Seller consents to jurisdiction, venue, and service
of process in such court(s) in accordance with applicable procedures.
In addition to the provisions of Paragraph 11 and any
other applicable provision(s) of this Contract, if Buyer, any of Buyer’s
customers, and / or any governmental authority determines that any goods
provided by Seller are defective and a recall campaign is necessary, Buyer will
have the right, in Buyer’s sole discretion, to implement such recall campaign
and to decide whether to return the defective goods to Seller or to destroy
such goods, at Seller’s sole cost and risk and with Seller’s full cooperation.
If a recall campaign is implemented, in Buyer’s sole discretion / option and at
Seller’s sole cost, Seller shall immediately replace any defective goods and
provide such replacement goods to Buyer or Buyer’s designee. The foregoing will
apply even if any or all of the warranties set forth herein, and any other
product warranty or warranties applicable to the goods, have expired. Seller
will be liable for all of Buyer’s costs associated with any recall campaign of
any goods, based upon a determination, in Buyer’s sole discretion, that the
goods in question fail to conform to any of the warranties set forth in this Contract
or otherwise applicable under law. Such costs may include, without limitation,
repairs, replacements, reimbursements, transportation costs, costs involved
with the removal of any goods subject to a recall, return of such goods,
delivery, and installation of goods that replace the recalled goods, and any
and all other associated costs and expenses incurred by Buyer in connection
with such recall. Further, where applicable as determined by Buyer in Buyer’s
sole discretion, Seller shall pay all reasonable expenses associated with
investigating and determining whether a recall campaign is necessary. For the
avoidance of doubt, Seller shall ensure compliance with all of the foregoing on
behalf of itself and Seller’s subsidiaries, affiliates, suppliers,
sub-suppliers, and / or sub-contractors.
If any term(s) of these Terms, any Purchase Order(s),
and / or the Contract is / are invalid and / or unenforceable under, e.g., any
law, rule of law, statute, regulation, ordinance, and / or executive order,
such term(s) shall be deemed reformed and / or deleted, as the case may be, but
only to the extent necessary to resolve such invalid and / or unenforceable
aspect(s), and the remaining provisions shall remain in full force and effect.
Subject to the limitations and other provisions of
this Contract, the representations and warranties of the Parties contained
herein shall survive the expiration or earlier termination of this Contract.
Further, Paragraphs 8, 9, 11, 12, 13, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26,
27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, and 41 of this Contract
shall survive the expiration or earlier termination of this Contract, as well
as any other provision of this Contract that, in order to give proper effect to
its intent, should survive such expiration or termination of this Contract.
This Contract (including these Terms and the terms of
any Purchase Order(s) from Buyer) constitute(s) the entire agreement between
Buyer and Seller with respect to the matters contained herein and supersedes
all prior oral or written representations and agreements. This Contract
(including these Terms and the terms of any Purchase Order(s) from Buyer) may
be modified only through an amendment issued by Buyer, which Buyer may issue
from time to time, with or without notice, either directly to Seller or on Buyer’s
website, in Buyer’s sole discretion.