GENERAL TERMS AND
CONDITIONSGENERAL TERMS AND CONDITIONS
FOR PURCHASE OF RAW MATERIALS
These General Terms and Conditions for Purchase of Raw Materials (as updated and revised, these “Terms and Conditions”) shall apply to each Purchase Order which references these Terms and Conditions and shall be deemed to be incorporated by reference therein, and are entered into as of the Effective Date, by and between CCI MANUFACTURING IL CORP., a Delaware corporation (“CMI,” collectively with its Affiliates, “Purchaser”), and the party to whom the applicable Purchase Order is addressed (“Seller”). Purchaser and Seller are each referred to herein as a “Party” and collectively as the “Parties”.
In addition to the capitalized terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:
1.1 “Affiliate(s)” means with respect to a Person, any other Person controlling, controlled by, or under common control with, such Person. For purposes of the Contract, “control” means possessing, directly or indirectly, the power to direct or cause the direction of the management, policies or operations of a Person, whether through ownership of voting securities, by contract or otherwise.
1.2 “Anti-Corruption Laws” means all Laws all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental authority relating to bribery or corruption, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
1.3 “Anti-Money Laundering Laws” means the anti-money laundering Laws of all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental authority.
1.4 “CCI Products” means all products that are manufactured by or on behalf of Purchaser, using the Products or into which the Products are incorporated.
1.5 “Claim(s)” means any demand, or any civil, criminal, administrative or investigative claim, action or proceeding (including arbitration) asserted, commenced or threatened against a Person by an third party. For purposes of this definition, an employee of either Party is considered an unaffiliated third party.
1.6 “CMI” shall have the meaning assigned thereto in the Preamble.
1.7 “Confidential Information” means any and all business, market, technical, financial, and other information (including information disclosed orally or visually) and written or machine-readable materials in any form or medium, (including product information, samples, and prototypes) of Purchaser or of any of its Affiliates, and third party information. Confidential Information includes any such information disclosed by or on behalf of Purchaser prior to the Effective Date. Confidential Information also includes the fact that the Contract exists, and the terms and conditions thereof. Confidential Information does not include information that Seller is able to establish, based on its files which exist prior to the time of disclosure or use:
- (a) that it was already known to Seller prior to its disclosure to Seller;
- (b) that it becomes publicly known through no wrongful act or fault of Seller or any of its Representatives;
- (c) that it was received by Seller from a third party without similar restriction and without breach of the Contract; or
- (d) that it was independently developed by Seller without breach of the Contract and without the benefit of any Confidential Information.
1.8 “Contract” shall have the meaning assigned thereto in Section 3.1 (a).
1.9 “Effective Date” shall have the meaning assigned thereto in Section 3.1 (a).
1.10 “Forecast” shall have the meaning assigned thereto in Section 3.3 (a).
1.11 “Indemnitees” shall have the meaning assigned thereto in Section 11.1.
1.12 “Intellectual Property” means all patents, patent applications, patentable subject matter, copyrights, copyrightable subject matter, work of authorship, derivative works, trademarks, service marks, trade names, trade dress, trade secrets, know-how, and any other subject matter, material, or information that is considered by Purchaser to be proprietary or confidential and/or that otherwise qualifies for protection under any Law providing or creating Intellectual Property Rights.
1.13 “Intellectual Property Right(s)” means any intellectual property rights or similar proprietary rights in any jurisdiction, whether registered or unregistered, including such rights in and to: (a) trademarks and pending trademark applications, trade dress, service marks, certification marks, logos, domain names, uniform resource locators, trade names and fictional business names, together with all translations, adaptations, derivations and combinations and like intellectual property rights, together with all goodwill associated with the foregoing, (b) issued patents and pending patent applications, and any and all divisions, continuations, continuations-in-part, reissues, renewals, provisionals, continuing patent applications, reexaminations, and extensions thereof, any counterparts claiming priority therefrom, utility models, patents of importation/confirmation, certificates of invention, certificates of registration and like rights, inventions, invention disclosures, discoveries and improvements, whether or not patentable, (c) works of authorship, all copyrightable works (including software) and all copyrights including all applications, registrations and renewals thereof, and all rights corresponding thereto, (d) trade secrets, proprietary business, technical and know-how information, non-public information, and confidential information and rights to limit the use or disclosure thereof by any Person, (e) mask works, and (f) moral rights.
1.14 “Inventions” shall have the meaning assigned thereto in Section 8 (a).
1.15 “Law(s)” means any and all (a) federal, territorial, state, local and foreign laws, treaties, conventions, directives, regulations and ordinances, (b) codes, standards, rules, requirements, directives, orders and criteria issued under any federal, territorial, state, local or foreign laws, ordinances or regulations, (c) rules of a self-regulatory organization (including the rules of any national securities exchange or foreign equivalent) and (d) judgments, orders, writs, directives, authorizations, rulings, decisions, injunctions, decrees, assessments, settlement agreements or awards of any Governmental Authority.
1.16 “Liabilities” shall have the meaning assigned thereto in Section 11.1.
1.17 “Party” and “Parties” shall have the meaning assigned thereto in the Preamble.
1.18 “Permitted Person(s)” shall have the meaning assigned thereto in Section 9.3 (a).
1.19 “Person(s)” means a natural person or any partnership (whether general or limited), limited liability company, trust, estate, association, corporation, or any other entity in its own or any representative capacity for any other entity, in each case, whether domestic or foreign.
1.20 “Prior NDA(s)” shall have the meaning assigned thereto in Section 9.1.
1.21 “Product(s)” means the products specified in the Purchase Order or any written agreement between Purchaser and Seller.
1.22 “Purchase Order(s)” means a purchase order issued by Purchaser to Seller for purchases of the Products.
1.23 “Purchaser(s)” shall have the meaning assigned thereto in the Preamble.
1.24 “Representative(s),” with respect to any Person, means such Person’s Affiliates and such Person’s and its Affiliates’ respective directors, officers, members, managers, employees, contractors, subcontractors, sub-suppliers, agents, consultants, advisors or other representatives. Representatives of Seller shall include all Permitted Persons and other Persons to whom Seller disclosed Confidential Information of Purchaser or its Affiliates.
1.25 “Safety Stock” shall have the meaning assigned thereto in Section 3.3 (b).
1.26 “Seller” shall have the meaning assigned thereto in the Preamble.
1.27 “Services” means all services to be performed in connection with the sale of the Products or otherwise agreed to be performed by Parties in writing.
1.28 “Specifications” means the most current version of all applicable specifications and requirements either: (a) attached hereto; or (b) provided by Purchaser, as a part of Purchase Orders or other written agreement between Purchaser and Seller, statements of work, project schedules, drawings, as well as any samples, drawings, spec sheets, or other descriptions or specifications or representations provided by Seller that are approved of by Purchaser or relied upon by Purchaser.
1.29 “Terms and Conditions” shall have the meaning assigned thereto in the Preamble.
1.30 “Warranty Period” shall mean, for each of the Product provided, the time period beginning on the day of acceptance by Purchaser, and continuing until the later of (a) the period provided under applicable Law; or (b) such other longer period designated by Purchaser.
- (a) The words "include," "includes" and "including" shall not be limiting and shall be deemed to be followed by the words "without limitation";
- (b) the word "or" is not exclusive;
- (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to these Terms and Conditions as a whole unless the context requires otherwise. Unless the context otherwise requires, references herein: (i) to Sections shall mean the Sections of these Terms and Conditions; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder;
- (d) Section headings are for are included for convenience of reference only and shall be ignored in the construction or interpretation hereof; and
- (e) The Contract shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
- (a) CMI and any of its Affiliates may place an order for the Products by issuing a Purchase Order. The terms of all Purchase Orders (when issued by Purchaser and accepted as set forth below), these Terms and Conditions, Prior NDAs (if applicable), all instructions and designations given or made by Purchaser, and all other agreements made in writing between Purchaser and Seller, shall collectively constitute the contract between the Parties with respect to the sale and purchase of the Products listed on the Purchase Order (the “Contract”). The Effective Date of the Contract shall be the earlier of (a) the date the Parties execute any written agreement involving supply of the Products, or (b) Seller’s acceptance of a Purchase Order (as set forth below) (the “Effective Date”). Acceptance is expressly limited to the terms of the Contract. No purported acceptance of any Purchase Order on terms and conditions which modify, supersede, supplement or otherwise alter these Terms and Conditions shall be binding upon Purchaser and such terms and conditions are expressly rejected and replaced by these Terms and Conditions.
- (b) Purchaser’s issuance of a Purchase Order to Seller does not constitute an acceptance by Purchaser of any offer or proposal by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, and is hereby expressly rejected and is replaced in its entirety by the offer made up of the Purchase Order.
- (c) Each Purchase Order (and the terms and conditions which relate to such Purchase Order, including these Terms and Conditions) shall be deemed accepted by Seller by (i) written acceptance (which may occur electronically), or (ii) shipment of Products. Additionally, each Purchase Order shall be deemed accepted five (5) days after Purchaser delivers the Purchase Order to Seller, if Seller does not object to the Purchase Order.
- (d) Purchaser may reschedule, amend or cancel all or any portion of any Purchase Order upon written notice to Seller, subject to Section 5.1 (c). Such written notice may occur in electronic format. Purchaser’s only Liability for rescheduling, amending or cancelling any Purchase Order shall be to pay for Products that are to be delivered under the Purchase Order.
3.2 Order of Precedence.
In the event of a conflict between or among any document comprising the Contract, the applicable document will prevail as follows: (a) a Purchase Order amendment issued by Purchaser (if any), (b) the Purchase Order, (c) instructions and designations given or made by Purchaser, (d) a supply agreement or any written agreement between Purchaser and Seller (if any), and (e) these Terms and Conditions.
- (a) Purchaser may (but not obligated to) provide Seller with a rolling forecast (each, a “Forecast”) setting forth its estimate of the quantities of the Products for which Purchase may place orders. Such Forecast shall in no event be binding on Purchaser unless expressly agreed to in writing by the Purchaser. Seller shall notify Purchaser within 24 hours if Seller believes it may not be able to deliver the Products in the quantity set forth in the Forecast. In the event of absence of such notice during the foregoing period, Purchaser shall be entitled to assume and rely on Seller’s ability to deliver the Products pursuant to the Forecast, whether it is binding or non-binding.
- (b) If requested by Purchaser, Seller shall build and maintain at all times during the Contract a safety stock of Products at an agreed location at no additional charge to Purchaser that consists of a quantity sufficient to deliver the quantities stated in the most recent Forecast under the Contract (“Safety Stock”). Seller will retain title to, and Purchaser will not have any obligations for, Safety Stock unless and until delivered in accordance with the Contract. Without Purchaser’s prior written consent, which Purchaser may withhold in its sole discretion, Seller may not sell, transfer, encumber or use any Safety Stock for any purpose other than to meet Seller’s obligations under the Contract.
- (c) If Seller’s ability to deliver the Products as specified in the Forecast or Purchase Order is or is reasonably likely to be constrained, Seller shall immediately notify Purchaser setting forth the cause for the anticipated delay and use best efforts to resolve the issue causing the constraint. Any oral communication shall be immediately confirmed in writing. During the period of any delay, Seller shall fulfill the relevant Purchase Orders prior to fulfilling orders for the same for any of Seller’s other customers, using the Safety Stock or other existing on-hand stock and Seller’s actual output. The foregoing is in addition to, and not in limitation of, Seller’s other obligations under the Contract and Purchaser’s other rights and remedies at law, in equity, and in the Contract.
- (d) UNLESS OTHERWISE AGREED TO IN WRITING BY PURCHASER, PURCHASER MAKES NO WARRANTIES REGARDING THE QUANTITY OF PRODUCTS THAT IT WILL ORDER, IF ANY. PURCHASER IS NOT REQUIRED TO ISSUE ANY PURCHASE ORDERS.
3.4 Changes by Purchaser.
Purchaser reserves the right at any time to direct changes to the Products under the Purchase Order including changes in the design (including drawings and Specifications), methods of packaging. Any such changes shall be deemed not to affect the time for performance or cost under the Purchase Order unless (a) Seller provides Purchaser with written notice of a request for adjustment to time for performance or cost within ten (10) days after Purchaser’s notice to Seller of the change and (b) after auditing such request, Purchaser determines that an adjustment (up or down) is appropriate. Any such request by Seller for adjustment to time for performance or cost under the Purchase Order must be solely and directly the result of the change directed by Purchaser and any notice of such request shall be effective only if accompanied by all relevant information sufficient for Purchaser to verify such request. In addition, Purchaser shall have the right to audit all relevant records, facilities, work or materials of Seller to verify any request.
4. Quality Control.
4.1 General Compliance Requirements/Certification.
- (a) Seller shall comply with, and shall cause its subcontractors and sub-suppliers and other Representatives to comply with, the Specifications and all requirements set forth as part of the Contract respect to the Products and Services, including the requirements set forth in this Section 4.
- (b) Seller shall provide an accurate and complete certificate of analysis for each Product which shall include Seller’s name, test data of the relevant lot, lot number, date of manufacture, expiration date, CCI RM code number, information regarding the origin of all materials in each Product. Seller shall send an updated Safety Data Sheet for chemical products and raw materials to Purchaser in the English language and in the local language if requested by Purchaser. The SDS must be in accordance with GHS (Global Harmonized System) requirements.
- (c) Seller shall also disclose such additional information regarding its subcontractors and sub-suppliers as and when reasonably requested by Purchaser.
- (d) Seller shall hold ISO 9001 through third-party audits; and demonstrate conformity to ISO 9001 by maintaining a third-party certification issued by a certification body bearing the accreditation mark of a recognized IATF accreditation body.
Seller shall develop, implement and improve its quality management system certified to ISO 9001 with the ultimate objective of becoming certified to the Automotive Quality Management System Standards through the following:
- (1) Certification to ISO 9001 with compliance to other customer-defined QMA requirements through second-party audits;
- (2) Certification to ISO 9001 with compliance to IATF 16949 through second-party audits;
- (3) Certification to IATF 16949
- (e) CMI strongly encourages Seller to obtain ISO 14001 and ISO 45001, or OHSAS 18001 for the Environmental and Occupational Health & Safety Management Systems.
- (f) CMI shall have the right to carry out its own assessment with respect to Seller’s compliance with quality control requirements under the Contract. CMI shall have the right to suspend all Purchase Orders in the event Seller fails to provide evidence of certifications requested in this Section 4.1 (d) or fails to maintain each such certification.
4.2 Requisite Programs and Policies.
Seller shall maintain, and cause its subcontractors and sub-suppliers to maintain, the following programs and policies for quality control purposes (collectively, the “Programs and Policies”), which must be revised and updated periodically.
- (a) Comprehensive Quality Assurance Program, which includes an organizational diagram and a chart to illustrate the flow from procurement of all raw materials and other ingredients (collectively, the “Raw Materials”), pre-manufacturing inspections, production processes, check points, pre-shipping tests, storage and shipping procedures.
- (b) Maintenance and Inspection Policy, which sets forth routine and special maintenance manual and inspection standards, and check lists for each machinery, equipment and other production facilities.
- (c) Maintenance and Inspection Records, which include dates, details, results of maintenance work and inspection records.
- (d) Training Manuals for all workers at manufacturing or processing facilities and procurement and shipping personnel.
- (e) Lot Control System
- (f) Manufacturing Records Retention Manual, which must contain at least the batch numbers, test results, Raw Materials used. All Raw Materials must be traceable. All such records must be kept at least twenty (20) years.
4.3 Raw Materials.
Raw materials to be used for the Products must meet their respective specifications and must be within the typical properties in order to ensure the product warranty is satisfied for all Products.
4.4 Quality Control Manager.
A qualified personnel must be appointed for each manufacturing location at all times who is responsible for quality assurance, maintenance and inspection, record keeping and training.
4.5 Internal Audit.
Periodical internal audits must be conducted and an audit report must be prepared for all audits identifying problems and issues, recommendations for improvements. An action plan must be prepared if recommended in the audit report, to be followed by progress and completion reports.
4.6 Copy Made Available.
Seller shall submit a copy of any of the Programs or Policies, investigation or audit reports, action plans and/or progress reports upon request by CMI.
- (a) In order to ensure the quality of the Products or Services, Seller shall retain samples of raw materials, test samples and engineering samples for at least eighteen (18) months, and upon Purchaser’s request, Seller shall provide to Purchaser, samples of raw materials, test samples and engineering samples, free of charge.
- (b) If Purchaser reasonably determines the samples do not meet the Specifications or other requirements, Purchaser may, upon notice describing such failure, reject the samples and require Seller to submit additional samples for further testing and approval. If Purchaser reasonably determines that the re-submitted samples again fail to comply with the Specifications or other requirements, Purchaser may cancel any Purchase Order which is outstanding at the time of such rejection.
4.8 Inspection and Reclamation.
- (a) Purchaser shall have the right (but not the obligation) to inspect, to review work-in-progress, and to test all products, tooling, special tooling, materials and workmanship at all times, the Programs and Policies during the period of manufacture for quality control purposes. Purchaser’s inspection of the Products, whether during manufacture, prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work-in-process or finished Products.
- (b) Purchaser shall have the right to enter the manufacturing or processing facilities of the Products during normal business hours to inspect the facilities, Products, materials and any property of Purchaser covered by each Purchase Order.
- (c) Upon CMI’s request, Seller shall and cause its subcontractors or sub-suppliers to, perform a plant modification as Purchaser may deem appropriate based on inspection of the samples or on-site inspection. In the event Purchaser makes such request, Seller shall as soon as possible, take necessary actions to comply with it.
4.9 Changes by Seller Not Permitted.
Without the prior written approval of Purchaser on the face of a Purchase Order amendment, Seller shall not make any changes to the Products covered by the Purchase Order, including changing (a) any third party supplier to Seller or raw materials used by Seller in connection with its performance under the Purchase Order, (b) the facility from which Seller or its subcontractors or sub-suppliers or other Representatives operate, (c) the nature, type or quality of any Services or raw materials (including their chemical formula, which affect the characteristics of the Products) used by Seller or its subcontractors or sub-suppliers or other Representatives in connection with the Purchase Order, (d) the fit, form, function, appearance, performance of any Products covered by the Purchase Order, (e) machinery, equipment, production method, or any process or software used in the production or provision of any Products under the Purchase Order, which may affect significant impact on the quality of the Products, or (f) the Programs and Policies.
4.10 Initial Control Period.
- (a) Purchaser shall have the right to declare an initial control period: (i) when a new product is added as the Product; (ii) in the event of changes to the Specifications; (iii) in the event non-conforming Products are delivered; (iv) in the event the Product Warranty is breached; or (v) in the event any change specified in Section 4.4 is made. The initial control period applies to the first five (5) commercial batches. During the initial control period, Seller shall not ship, sell or deliver any Product to Purchaser on a commercial basis until Purchaser has inspected the test samples.
- (b) Purchaser has the right to extend the initial control period beyond the first five (5) commercial batches as it may deem necessary for quality control purposes.
- (c) Should there be non-conforming Products or in the event of breach of the Product Warranty, Seller must take immediate corrective actions. Seller must first conduct a thorough investigation in order to identify the root cause, issue an initial investigation report within 24 hours, and take corrective actions and to ensure uninterrupted production of the Products in compliance with these Terms and Conditions. These actions may include sorting, rework, containment, immediate replacement of non-conforming Products, and identification of conforming Products and materials, and the presence of the Seller’s personnel in the CMI plant affected, at their cost. Seller shall provide CMI with an initial root cause analysis report, identifying containment actions (3D) within five (5) working days.
- (d) Seller shall provide CMI with root cause analysis report within five (5) working days with a report detailing complete corrective action. A corrective action-timing plan shall be submitted to CMI for its approval.
4.11 Pre-shipment Inspection.
Prior to shipment of each Product, Seller shall perform inspections of the Products in accordance with the instructions given by Purchaser to ensure that they are in strict conformance with the relevant Specifications and other requirements.
4.12 Compliance with Laws.
- (a) Seller shall comply with all applicable Laws including, without limitation, relevant environmental legislation, both applicable to the regions where the Products are produced and/or sold as a part of the CCI Products or otherwise (including end-customer's country of destination), as well as any additional specific requirements from CMI. In particular, all Products and materials (including packaging thereof) delivered to Purchaser shall conform to the following regulatory requirements:
Compliance with Laws and Regulations (local, government, federal)
Environmental, Health, and Safety Laws
Conflict minerals Sourcing
China Compulsory Certification (CCC Mark)
Existing Automotive Standards
EU REACH (EC) No. 1907/2006
Ethics, Code of Conduct and Policy Enforcement
Confidentiality, Proprietary Rights
Free Trade Agreements (FTA’s)
The Restriction of Hazardous Substances (RoHS)
Plus all applicable revisions and amendments to the legislation that affect products in the supply chain and other local applicable legislations.
- (b) Seller must recognize that the applicable government regulations might include those in the country of manufacturer as well the country of sale.
4.13 Segregation/Quality Preservation.
- (a) All finished and tested Products must be kept separate from other products (such as unfinished or non-conforming products).
- (b) Preventive measures must be taken to avoid reduction of quality while in storage.
- (c) “First in first out” control methods must be used.
5.1 Delivery Terms.
- (a) Seller shall deliver Products both in quantities and at times specified on the relevant Purchase Order. Unless otherwise stated in the Contract, Products shall be delivered DAT (Delivered at Terminal) for US domestic shipments or DDP (Delivery Duty Paid) for international shipments (Incoterms 2020), Purchaser’s designated manufacturing facility. Title and risk of loss or damage will transfer upon completion of delivery of the Products by Purchaser at such facility.
- (b) Seller shall adhere to shipping directions specified by Purchaser. Purchaser shall not be required to make payment for Products delivered to Purchaser that are in excess of firm quantities specified in the Contract. Shipments in excess of authorized quantity by Purchaser may be returned to Seller at Seller’s expense, and Purchaser may debit Seller for the cost of such returns.
- (c) Purchaser may change shipping schedules or direct temporary suspension of such scheduled shipments. Premium shipping expenses and/or other expenses necessary to meet delivery schedules set forth in the Contract shall be Seller’s sole responsibility unless such expenses are incurred solely due to a change of shipping schedule made by Purchaser.
- (d) Seller shall provide packing slips for all shipments. Packing slips and other shipping documents and memos, such as bills of lading, shall show the Purchase Order number, part number, vendor, and item and reference numbers. For each international shipment, in addition to the packing list, Seller shall include a customs valuation invoice (pro forma or “Commercial Invoice”, using the value set forth in the Purchase Order), with a master packing slip and shall furnish all other required export/import documents. Export and trade credits shall belong to Purchaser. Seller shall furnish (i) all documents required to obtain export credits and customs drawbacks; (ii) certificates of origin of the materials and Products provided and the value added in each country; (iii) all trade preference related or required documents; (iv) all required export licenses or authorizations; and (v) any other documents requested by Purchaser or any of its customers. Seller warrants that the contents of such documents shall be true and accurate. Seller shall indemnify Purchaser for any damages, including duties, interest and penalties, arising from a false or inaccurate statement.
- (e) The Products provided by Seller shall be properly packed, marked, loaded and shipped as required by the Purchase Order and by the transporting carrier. Purchaser may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Seller shall comply with shipping instructions and process as provided by Purchaser. If Purchaser has not provided packing or shipping instructions, Seller will pack and ship Products in accordance with the Law and industry standards. Seller shall reimburse Purchaser for all expenses, including damage to the Products, incurred due to improper packing, marking, or loading. Unless otherwise provided in the Purchase Order, any charges or costs related to the handling, packaging, storage or transportation of the Products are the responsibility of the Seller and have been included in the price of the Products.
5.2 Time, Quantity and Quality are of the Essence.
- (a) TIME, QUANTITY, AND QUALITY ARE OF THE ESSENCE AS TO ALL PRODUCTS AND SERVICES. If Seller is late in delivery of any Products or its provision of any Services, or if Seller cannot deliver the full quantities of Products required under the Contract, or if Seller cannot meet the quality requirements under the Contract, Seller shall be in default under the Contract. In addition to any other binding obligations on Seller under the Contract, if Seller cannot meet the delivery dates, quantities or quality requirements specified in the Contract, Seller will promptly notify Purchaser and Purchaser shall be entitled to exercise any or all of the remedies set forth in the Contract.
- (b) If Seller is unable or otherwise fails to supply the agreed Products by the agreed delivery date(s) or meet quantity or quality requirements in accordance with the Contract (or indicates that it will not meet any future delivery date), Purchaser may: (i) cancel all or a portion of the Contract without Liability and return rejected Products at Seller’s cost; (ii) require Seller to deliver Products using expedited delivery methods necessary to meet delivery schedules set forth in the Purchase Order (in which case all costs and expenses of such expedited delivery shall be at Seller’s sole expense); or (iii) purchase substitute Products and alternative Services from other suppliers and hold Seller liable for the difference between the price of the Products or Services to have been provided by Seller and amounts charged for the substitute performance, including charges for shipping, insurance, handling and taxes, and other costs incurred by Purchaser as a result of Seller’s failure.
5.3 Rejection of Non-Conforming Products.
- (a) Purchaser shall have the right, in addition to exercising all other rights Purchaser may have under the Laws, to reject Products as non-conforming or defective, and require Seller to replace the non-conforming or defective Products within twenty-four (24) hours of Purchaser’s notice thereof, at Seller’s sole expense, including all shipping, transportation, and other costs; and/or correct or replace the non-conforming or defective Products with conforming Products and recover all costs relating thereto from Seller.
- (b) If the remedies of this Section 5.3 alone or together, are insufficient to meet Purchaser’s requirements or if Seller will be unable to comply with such provisions (as determined by Purchaser in its sole discretion), Seller’s default hereunder shall be deemed to subject Purchaser to irreparable and continuing injury for which remedies at law would be inadequate and, accordingly, Purchaser shall have the right to apply at any time to a judicial authority for appropriate injunctive relief (or other interim or conservatory measures) without the posting of any bond, including, as applicable, the exercise of the rights available at law or in equity.
In addition to any express warranties set forth in the Purchase Order, any statutory warranties or any warranties implied by Law, Seller, on behalf of itself and its sub-contractors, sub-suppliers or any other Representatives, as applicable, expressly represents and warrants to Purchaser and Purchaser’s customers, successors and assigns as set forth in this Section 6.
6.2 Product Warranties.
All Products delivered: (a) do not infringe any Intellectual Property Right of any third party, either on its own or in combination with any reasonably foreseeable goods, services, and/or software; (b) have been manufactured in compliance with the Specifications and all applicable Laws; (c) strictly conform to the applicable Specifications without contamination at the time of delivery and operate in accordance with the Purchaser’s and end-users’ reasonable expectations during the Warranty Period; (d) conform to all drawings, PPAP submissions, samples and other descriptions furnished or relied upon by Purchaser or otherwise part of the Contract; (e) are merchantable, free from defects in design (unless designed by Purchaser without input from Seller), material and workmanship and shall be new and of highest quality; (f) are fit for the purpose for which they are intended and safe for any use that is consistent with the applicable Specifications or that is reasonably foreseeable; (g) are free and clear of all liens, Claims or other encumbrances, and conveyed to Purchaser with good title; and (h) conform to all industry standards and Laws in force in jurisdictions where CCI Products are expected to be used, sold, exported or distributed.
6.3 Services Warranties.
All Services are: (a) performed in a professional and workmanlike manner, using qualified personnel with the required skill, experience and qualifications to meet its obligations under the Contract; (b) performed in accordance with all applicable Laws, and industry standards or other applicable standards, labeling, transporting, licensing approval or certification requirements, in the United States or any other jurisdiction where the CCI Products are expected to be used, sold exported or distributed; and (c) do not infringe or misappropriate any Intellectual Property Rights of any third party. Further, all deliverables under the Services: (a) are free of all malware, viruses and all other malicious code, disabling code, or code that causes either the Product or any product into which the Product is incorporated to perform in an unintended manner; and (b) do not cause any portion of CCI Product or any software owned or licensed by Purchaser, or any derivative thereof to (A) become subject to all or part of the license obligations or other Intellectual Property Rights or restrictions of any third party, including any open source software requirements; or (B) be disclosed or distributed in source code form, licensed to third parties for the purpose of making derivatives or such software, or redistributed free or charge.
6.4 Remedial Action.
Seller will immediately notify Purchaser in writing when it becomes aware of any ingredient, component, design or defect in the Products that is or may become harmful to Persons or property or fails to meet the Specifications or other requirements of the Contract. Promptly upon learning of defective or non-conforming Products, and in addition to complying with Section 6, Seller will develop, document and implement corrective actions in accordance with all applicable quality control policies and standards of Purchaser, including by: (a) promptly investigating and reporting on the root cause of the problem; (b) remedying the cause of the problem and resume performance in accordance with the Contract; (c) implementing and notifying Purchaser of measures taken by Seller to prevent recurrences if the problem is otherwise likely to recur; and (d) making written recommendations to Purchaser for improvements in procedures.
6.5 Other Remedies.
Without limiting the generality of the provisions of Section 6.4, if Seller breaches the warranties set forth in Section 6, Seller shall notify Purchaser and Seller shall, if requested by Purchaser, reimburse Purchaser for any special, incidental and consequential damages caused by nonconforming Products or Services, including costs, attorneys’ fees, expenses and losses incurred by Purchaser, including (a) in inspecting, sorting, testing, repairing or replacing such nonconforming Products or Services; (b) resulting from production interruptions, and (c) in connection with Claims for personal injury (including death) or property damage caused by such non-conforming Products or Services.
6.6 Production Records/Samples.
Seller shall, and shall cause all its Representatives, as applicable, maintain accurate and detailed production records of the Products manufactured and the samples of Products for each batch for a period of at least ten (10) years or for a such longer period requested by Purchaser, Seller shall make such records available to Purchaser upon request. The production records shall contain daily production volume of each Product and raw materials used for such production, test data and other information requested by Purchaser.
7. Price; Payment Terms.
- (a) The purchase price for Products and the Services (i) shall be determined accordance with the formulas set forth in the Contract, or (ii) is listed on the Purchase Order.
- (b) The purchase price is (i) not subject to increase (including any increase based upon currency fluctuations, changes in raw material or component pricing, labor or overhead), unless specifically agreed to by Purchaser in writing, and (ii) inclusive of all storage, handling, packaging, labeling, shipping and all other expenses and charges.
- (c) Seller shall ensure that the price charged to Purchaser for Products or Services remains competitive with the price for similar products or services available to Purchaser from other sellers.
7.2 Payment Terms.
- (a) Except as otherwise provided in the Purchase Order, Purchaser shall pay Seller for Products as provided in the Contract. Unless otherwise indicated in the Purchaser Order, all payments are due Net thirty (30) end of month from the date on which Purchaser received an undisputed invoice therefor. Payment of charges shall not be deemed an approval of such charges or acceptance of non-conforming Products, and Purchaser may later dispute such charges, and payment of charges shall not relieve Seller of any of its warranties or other obligations under the Contract, or limit or affect any rights or remedies of Purchaser.
- (b) Unless prohibited by Law or stated in the Contract, Seller shall pay all federal, state or local tax, transportation tax, or other tax, including customs duties and tariffs, which is required to be imposed upon the Products ordered, or by reason of their sale or delivery. All Purchase Order prices shall be deemed to have included all such taxes. Purchaser shall withhold all applicable taxes from amounts payable to Seller, without Liability to Seller therefor, if such withholding is required by Law, and, in such event, Purchaser may require Seller to indicate on each invoice the percentage of Services performed within the United States.
- (c) Invoices may only be issued upon transfer of title to Products to Purchaser and Purchaser’s acceptance of the Products. All invoices will be issued and all payment will be made in the US Dollars unless otherwise set forth in the Contract. All invoices for Products provided pursuant to the Purchase Order must reference the Purchase Order number, Purchase Order amendment, as applicable, quantity of pieces in shipment, number of cartons or containers, Seller’s name and number, and bill of lading number, before any payment will be made for Products by Purchaser.
- (d) In addition to any right of setoff or recoupment allowed by Law, all amounts due Seller or any of its Affiliates shall be considered net of indebtedness or obligations of Seller to Purchaser and its Affiliates, and Purchaser may set off against or recoup from any amounts due from Seller or any of its Affiliates to Purchaser and its Affiliates however and whenever arising, including the Purchaser’s attorneys’ fees and costs of enforcement.
- (e) If an obligation of Seller or any of its Affiliates to Purchaser is disputed, contingent or unliquidated, Purchaser may defer payment of all or any portion of the amount due until such obligation is resolved.
8. Intellectual Property.
- (a) All Products, including, whether or not patentable, 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 performing any Purchase Order and based on or using any Confidential Information of Purchaser or its Affiliates (including any improvement of the Specifications of the Products or any alternative or improved method of accomplishing the objectives under the Contract) and any associated Intellectual Property Rights therein (collectively, “Inventions”) are the sole and exclusive property of Purchaser or its designee. Seller agrees that all Inventions created by Seller in connection with each Purchase Order are “works made for hire” on behalf of Purchaser as that term is used in connection with the U.S. Copyright Act. Seller shall promptly disclose all Inventions to Purchaser and shall cooperate (and cause its employees and other Purchaser Representatives to cooperate) in executing any documents and taking any other actions necessary or convenient to patent, copyright, assign to Purchaser or otherwise perfect or protect such Inventions for the benefit of Purchaser.
- (b) Seller shall not disclose to Purchaser any confidential information, including any trade secrets, of any third party. Seller grants to Purchaser an irrevocable, non-exclusive, royalty-free, worldwide license, with the right to grant sublicenses, to use any technical information, know-how, copyrights, and patents, or other Intellectual Property owned or controlled by Seller or its Affiliates to (i) use the Products to make or have made all CCI Products, and (ii) use, sell , export, distribute any CCI Products. Such license shall be effective from the first delivery under the Purchase Order.
- (c) Seller shall ensure that any subcontractors and sub-suppliers to Seller have contracts with Seller in writing consistent with the terms of this Section 8 to ensure that the protections required by Purchaser from Seller are also received from subcontractors and sub-suppliers for the benefit of Purchaser and Seller.
- (d) Nothing in the Contract shall be construed to grant any right or license with respect to the Intellectual Property Rights of Purchaser or any of its Affiliates to Seller or any other Person, unless reduced to writing and executed by Purchaser.
9.1 Prior Non-Disclosure Agreements.
In the event of any conflict between any provision of these Terms and Conditions and any prior non-disclosure or confidentiality agreement(s) executed between the Parties with respect to the disclosure, receipt and/or use of confidential or proprietary information (each, a “Prior NDA”), the provisions of these Terms and Conditions shall prevail unless otherwise expressly stated in the Prior NDA.
9.2 Restrictions on Disclosure and Use of Confidential Information.
- (a) For a period of time as such Confidential Information retains its characters as Confidential Information by reason of not having fallen into one of the exceptions set forth in Section 1, Seller shall, and shall cause of its Permitted Persons to, (i) hold all Confidential Information in strict confidence, (ii) not disclose Confidential Information to any Person, except for disclosure to the Permitted Persons, (iii) not use or exploit Confidential Information in any way other than to perform the duties under the Contract; and (iv) employ all reasonable measures to safeguard Confidential Information from inadvertent disclosure or use, including without limitation all measures that Seller employs to protect its own information of like importance.
- (b) Without limiting the generality of the provisions of Section 9.2 (a), Seller specifically agrees that it shall not, and shall cause all Permitted Persons not to (i) reverse engineer or analyze chemical components of any sample or prototype provide by or on behalf of Purchaser or otherwise engage in any research and development activities using such samples or prototypes; or (ii) engage in research and development activities with respect to any Confidential Information other than expressly provided for in the Contract.
- (c) Seller shall not and shall cause all Permitted Persons not to reproduce or copy, in part and in any manner or form, any of the Confidential Information other than as is necessary to perform his/her/its duties under the Contract. Seller shall, and cause all Permitted Persons to ensure that all reproductions he/she/it makes of the Confidential Information contain a prominent legend identifying its confidential nature. All reproductions of Confidential Information shall be subject to all the protections and use limitations applicable to the original information.
9.3 Disclosure to Permitted Persons.
- (a) Seller may disclose Confidential Information, but only to the extent necessary to perform its duties under the Contract, to its and its Representative’s responsible full-time employees, directors, officers and agents who have a bona fide need to know (collectively referred to as the “Permitted Persons”).
- (b) Disclosure to any of the Permitted Persons is permitted only on the condition that the Permitted Person has agreed in writing that he, she or it will strictly observe the confidentiality obligation as provided under this Agreement. Seller shall submit a copy of such agreement upon request by Purchaser.
- (c) Seller shall be liable for breach of confidentially and other obligation under this Agreement by its Permitted Persons.
9.4 Ownership; Return of Materials.
- (a) All documents, and written or machine-readable materials containing or reflecting Confidential Information are and shall remain the property of Purchaser or its designee. Upon request of Purchaser or upon termination of the Contract, all such written or machine readable matter (whether held or controlled by Seller of any of the Permitted Persons) shall be promptly returned to Purchaser or destroyed or purged at Purchaser’s option, without retaining any copy or duplicate thereof.
- (b) Upon written request of Purchaser, Seller shall submit a statement confirming that all Confidential Information has been returned or destroyed pursuant to the provision of Section 9.4, executed by an authorized officer of Seller.
- (c) Nothing contained in these Terms and Conditions grants or confers any rights by license or otherwise, express or implied, under any patent, copyright, trademark, trade secret, character, publicity or other Intellectual Property Rights of Purchaser of any of its Affiliates.
9.5 Permitted Disclosure.
Seller may disclose Confidential Information which must be disclosed pursuant to the requirements of a governmental agency or a stock exchange or similar organization, or court order, only on the condition that Seller has given Purchaser a prior written notice of such disclosure providing reasonable opportunity to contest or limit the scope of disclosure or take protective or other appropriate measures.
9.6 No Warranty.
All information disclosed or given by Purchaser to Seller pursuant to the Contract is disclosed or given on the ASIS and AS AVAILABLE basis, without any warranty or guarantee with respect to its contents, unless otherwise expressly stated in the Contract. Seller uses the Confidential Information at its own discretion and risk. Neither Purchaser nor any of its Affiliates shall be liable for any damages or costs incurred by Seller or any other Person arising from the use of or reliance on Confidential Information.
9.7 Data Security.
Data Security. Seller shall: (a) establish, implement and maintain reasonable safeguards against the destruction, loss, alteration and unauthorized access and use of Purchaser’s Confidential Information in the possession or control of Seller (or its Permitted Persons, as applicable) that are no less rigorous than those maintained by Seller for its own data of a similar nature; and (b) comply with Purchaser’s information and data security policies as disclosed to Seller from time to time.
10. Additional Obligations.
10.1 Compliance with Laws.
Seller shall comply with all applicable Laws that regulate the sale, manufacture, labeling, transportation, licensing, approval or certification of the Products or performance of the Services, including: (a) all applicable export control and sanctions Laws of the United States and any other country into which the CCI Products may be exported; and (b) those relating to environmental matters, the handling and transportation of dangerous Goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health and safety and motor vehicle safety. The Purchase Order shall be deemed to incorporate by reference all the clauses required by the provisions of said Laws. At Purchaser’s request, Seller shall certify in writing its compliance with the foregoing.
10.2 Forced Labor.
Seller guarantees that neither it nor any of its subcontractors, sub-suppliers, vendors, agents or other associated third parties will utilize child, slave, prisoner, or any other form of forced or involuntary labor or engage in abusive employment or corrupt business practices.
10.3 No Bribery.
Seller shall comply with all applicable Anti-Corruption Laws and Anti-Money Laundering Laws; and neither it nor any of its subcontractors, sub-suppliers, vendors, agents or other associated third parties will engage in any form of commercial bribery, nor directly or indirectly provide or offer to provide, anything of value to or for the benefit of, any official or employee of a governmental authority or of any government-owned, government-controlled or government-affiliated entity to obtain or retain any contract, business opportunity or other business benefit, or to influence any act or decision of such a person in their official capacity. Seller guarantees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or similar material gratuity from a CMI representative, employee or agent. At CMI’s request, Seller will certify in writing its compliance with the foregoing and will report any breach or violation of this Section immediately to CMI.
Seller shall maintain insurance in amounts as are specified by CMI, naming CMI and other Purchasers as an additional insured, and covering general liability, public liability, product liability, product recall, completed operations, contractor’s liability, automobile liability insurance, Worker’s Compensation, and employer’s liability insurance as will adequately protect Purchaser against damages, Liabilities, Claims, losses and expenses (including attorneys’ fees) with respect thereto. Seller will also insure for replacement value all machinery, equipment, tools and other property or items necessary to perform under the Purchase Order. Seller agrees to submit certificates of insurance evidencing its insurance coverage, when and as requested by Purchaser.
During the term of the Contract and thereafter, Seller shall not make or publish any disparaging or derogatory statements with respect to CMI or other Purchasers, or their integrity, business or professional standing or reputation, or that of any of its Representatives.
10.6 Seller Financial and Operational Condition.
Seller represents and warrants to Purchaser as of the date of each Purchase Order that: (a) it is not insolvent and is paying all debts as they become due; (b) it is in compliance with all loan covenants and other obligations; and (c) all financial information provided by Seller to Purchaser concerning Seller is accurate and has been prepared in accordance with generally accepted accounting principles of the jurisdiction in which it operates. Upon Purchaser’s request, Seller shall permit Purchaser and its Representatives to review Seller’s books and records concerning Seller’s compliance with each Purchase Order.
10.7 Sustainability Self Assessment.
Seller hereby certifies and confirms that the Sustainability Self Assessment submitted to CMI by Seller is accurate and correct in all respects.
Seller shall indemnify and hold harmless Purchaser, its Affiliates and its and their respective former and present directors, officers, employees, contractors, representatives, invitees, agents and customers (collectively, “Indemnitees”) from and against all liability, demands, Claims, losses, costs, actions, judgments, fines, penalties, damages and expenses, including expert’s and attorneys’ fees, (collectively, “Liabilities”) incurred by any Indemnitee arising out of any third party Claim that is based on or relates to: (a) Seller’s noncompliance or breach of any representation, warranty or obligation under the Contract (including these Terms and Conditions); (b) any service campaign, product recall campaign, corrective action, or other voluntary or involuntary action or effort in which Purchaser participates with respect to the Products; (c) any spill, discharge, or emission of hazardous wastes or substances; (d) any infringement or misappropriation of any Intellectual Property Right relating to any Product or any portion thereof; (e) releasing, terminating or otherwise removing any lien placed on the Purchaser’s property; (f) any product liability claim; or (g) any personal injury claim, including death or injury, or damage to property, caused by Seller or any of its Representatives, or in any way attributable to the performance of Seller or any of its Representatives. Seller, on its behalf and on behalf of all its Representatives, waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the Liability covered by Seller’s indemnity. This indemnification obligation shall apply regardless of whether the Claim arises in tort, negligence, contract, warranty, strict liability or otherwise.
11.2 Indemnification Procedure.
Purchaser shall give Seller prompt written notice of any Claim for which indemnification is sought under this Section 11. Failure to give notice will not diminish Seller’s obligation under this Section 11. When provided notice of any actual or potential Liabilities, Seller, at Purchaser’s option and at Seller’s expense, will undertake defense of such actual or potential Liabilities through counsel approved by Purchaser. Seller may select legal counsel to represent each Indemnitee (said counsel to be reasonably satisfactory to Purchaser) and otherwise control the defense of such Claim; provided, however, that Seller shall first obtain authorization from Purchaser before settlement is made of the actual or potential Liabilities. In the alternative, Purchaser may elect to undertake defense of such Liabilities to the extent asserted against Purchaser, and Seller shall reimburse Purchaser on monthly basis for all expenses, attorneys’ fees, and other costs incurred by Purchaser.
11.3 Infringement Claims.
If any Product or Service becomes, or in Seller’s reasonable opinion is likely to become, the subject of a claim of infringement or misappropriation of any Intellectual Property Rights, Seller shall, at its sole expense, either (a) promptly procure for Purchaser the right to continue to use the Products or Service, or (b) replace or modify the Products or Service to make it non-infringing, provided that the modified Products or Service meets the Specifications and all other requirements under the Contract.
12. Term and Termination.
The Contract shall be effective as of the Effective Date and shall remain in effect until terminated under this Section 12.
12.2 Termination for Default.
In addition to the Purchaser’s right to cancel Purchase Orders set forth elsewhere in the Contract, Purchaser may terminate immediately (or such other time as set forth in Purchaser’s termination notice) all or any part of each outstanding Purchase Order, without any Liability of Purchaser to Seller, in the event of any default by Seller. Seller is in default if : (a) Seller fails to perform or breaches any obligations under the Contract; (b) Seller repudiates, breaches or threatens to breach any of the terms and conditions of the Contract; (c) Seller breaches any representation or warranty in the Contract; (d) Seller fails to provide Purchaser with adequate and reasonable assurance of Seller’s ability to perform timely any of Seller’s obligations under the Contract, including delivery of Products; (e) Seller fails to meet reasonable quality requirements so as to endanger timely and proper performance of the Contract; or (f) in the event of an insolvency or filing a voluntary or involuntary petition in bankruptcy by or against Seller.
12.3 Termination for Change of Control.
In addition, Purchaser may, at its option, terminate the Contract immediately (or such other time as set forth in Purchaser’s termination notice) without any Liability to Seller for a change of control of Seller. A change of control of Seller includes: (a) the sale, lease or exchange of a substantial portion of Seller’s assets used for the production of Products, or the entrance into an agreement by Seller regarding the same; (b) the sale or exchange of more than twenty percent (20%) of Seller’s equity interest (or of such lesser percentage as would result in an change of decision making authority of Seller), or the entrance into an agreement regarding the same; (c) the sale of Seller’s equity interest to a competitor of Purchaser (as reasonably determined by Purchaser) or an agreement regarding the same; (d) the execution of a voting or other agreement providing a Person or a group of Persons with control of Seller or control of more than twenty percent (20%) of Seller’s stock or other ownership interest (or of such lesser percentage as would result in an change of decision making authority of Seller). Seller shall notify Purchaser promptly in writing in the event of the earlier of (i) the entrance into an agreement, or (ii) the occurrence of an event, described above in this Section 12.3.
12.4 Termination for Convenience.
In addition to any other right of Purchaser to terminate the Contract, Purchaser may at its option, immediately (or such other time as set forth in Purchaser’s termination notice) terminate all or any part of the Contract at any time and for any reason by giving written notice to Seller.
12.5 Termination Claims; Obligations Following Termination.
- (a) Upon the effective date referenced in any notice of termination pursuant to Sections 12.2, 12.3, or 12.4, Seller, unless otherwise directed in writing by Purchaser, shall (i) terminate immediately all work under the Purchase Order; (ii) transfer title and deliver to Purchaser the usable and merchantable finished Products, work in process, and raw materials/components that Seller produced or acquired in accordance with the Purchase Order pursuant to a binding Forecast (if any); (iii) take actions reasonably necessary to protect property in Seller’s possession in which Purchaser has an interest; and (iv) upon Purchaser’s request, cooperate with Purchaser in effecting the resourcing of the Products covered by the Purchase Order to an alternative supplier designated by Purchaser.
- (b) Upon termination of any Contract by Purchaser under Sections 12.3 or 12.4 only, Purchaser shall pay to Seller the following amounts without duplication: (i) the Purchase Order price for all finished and completed Products that have been duly delivered and conform to the requirements of the Purchase Order and not previously paid for; and (ii) Seller’s reasonable actual cost of the usable and merchantable work in process and raw materials/components transferred to Purchaser in accordance with Section 12.5.
- (c) Except as expressly set forth in Section 12.5 (c), Purchaser shall not be liable for and shall not be required to make payments to Seller upon termination.
12.6 Limited Termination Right by Seller.
Because Purchaser’s commitments to its customers are made in reliance on Seller’s commitments under each Purchase Order, Seller has no right to terminate this Contract or any Purchase Order other than upon material breach by Purchaser which is not cured within thirty (30) days after a written notice thereof by Seller.
13. Purchaser Liability.
- (a) In no event shall Purchaser be liable to Seller or its Representatives for anticipated or lost profits, interest, penalties or for any incidental, consequential, special, exemplary or punitive damages in connection with the Contract. Nor shall Purchaser under any circumstances be liable to Seller or its Representatives for any fees, including attorney or consulting fees, or any statutory damages.
- (b) The obligations of each Purchaser under the Contract are several and not joint with the obligations of any other Purchaser. No Purchaser is responsible in any way of the performance of the obligations of any other Purchaser.
14. Force Majeure.
Any delay or failure of either Party to perform its obligations shall be excused if it is caused by a force majeure, which means an extraordinary and unforeseeable riots, natural disasters, wars and sabotage. Written notice of such delay, including the anticipated duration of the delay, must be given by the nonperforming Party to the other Party within twenty-four (24) hours of the event. If the nonperforming Party is Seller, and if the delay lasts more than the time period specified by the Seller, Purchaser may, among its other remedies, immediately cancel the Contract or any outstanding Purchase Order without Liability. Seller acknowledges and agrees that the following will not excuse performance by Seller under theories of force majeure, commercial impracticability or otherwise and Seller expressly assumes the following risks: (a) change in cost or availability of materials, components or services based on market conditions, supplier actions or contract disputes; and (b) failure of Seller’s internal business systems related to the proper processing of information that results in any defect or failure in Products or Services, deliveries, or any other aspect of performance by Seller or its Representatives. Purchaser may cancel the Contract or any Purchase Order at any time prior to delivery or performance if its business is interrupted for reasons beyond Purchaser’s reasonable control. Purchaser shall give prompt notice of such cancellation to Seller.
15. General Provisions.
15.1 No Waiver.
A waiver by Purchaser of any right or remedy shall be in writing and not affect any rights or remedies subsequently arising under the same or similar clauses. The failure of the Purchaser to insist upon the performance of any term or condition of the Contract, or to exercise any right hereunder shall not be construed as a waiver of the future performance of any such term or condition or the exercise in the future of any such right.
15.2 Rights and Remedies Cumulative.
The rights and remedies reserved to Purchaser in the Contract shall be cumulative with, and additional to, all other or further remedies provided in law or equity.
15.3 Relationship of Parties.
Seller and Purchaser are independent contracting parties and nothing in this Contract shall make either Party the agent or legal representative of the other 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.
Each Purchase Order is issued to Seller in reliance upon Seller’s personal performance of the duties imposed. Seller agrees not to, in whole or in part, assign the Contract without the written consent of Purchaser, and any attempt to do so shall be void ab initio. Assignment shall not relieve Seller from its obligations of confidentiality under Section 9 hereof. Purchaser may, in its sole discretion, transfer or assign the Contract, in whole or in part, to any of its Affiliates upon notice to Seller.
Seller shall not subcontract or delegate any of its obligations under the Contract without the prior written consent of Purchaser. Any such consent of Purchaser will not release Seller from, or limit, any of Seller’s obligations under the Contract. Seller warrants and guarantees that any subcontractor’s performance (whether the subcontracting has been approved by Purchaser or not) will satisfy all requirements and obligations applicable to Seller under the Contract.
If any term(s) of the Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term(s) shall be deemed deleted, and the remaining provisions of the Contract shall remain in full force and effect.
All notices, claims and other communications to Purchaser required or permitted under the Contract shall be made in writing and sent by hand, overnight courier or certified mail to the address printed on the Purchase Order (or such other address as is provided to Seller by Purchaser) and shall be effective only upon receipt by Purchaser.
15.8 Claim from Seller.
In addition to any other restrictions contained in the Contract, any action by Seller under the Contract must be commenced within one (1) year after the breach by Purchaser or other event giving rise to Seller’s Claim occurs, regardless of Seller’s lack of knowledge of the breach or other event giving rise to such Claim.
15.9 Governing Law; Dispute Resolution.
The construction, interpretation and performance of the Contract and all transactions thereunder shall be governed by the Laws of the State of New York, without regard to principles of conflicts of law. The United Nations Convention on the International Sale of Goods is expressly excluded. Any claims or disputes arising between the parties arising under this Contract shall, at Purchaser’s sole election, be resolved, if elected by Purchaser, through binding arbitration under the Commercial Arbitration Rules and Mediation Procedures published by the American Arbitration Association, by a single arbitrator if the amount disputed is less than One Hundred Thousand Dollars (US$100,000) and three (3) arbitrators if the amount disputed is in excess of One Hundred Thousand Dollars (US$100,000), who shall be appointed in accordance with said rules. If arbitration is elected by Purchaser, the arbitration shall take place in New York City, New York and be conducted in the English language. If Purchaser does not elect arbitration, then Seller consents to the exclusive jurisdiction of courts located in New York City, New York. Seller specifically waives the right to a jury and any and all objections to venue in such courts.
15.10 No Third-Party Beneficiaries.
Unless otherwise expressly provided for herein, no provisions of the Contract are intended or shall be construed to confer upon or give to any Person other than Seller and Purchaser any rights, remedies or other benefits under or by reason thereof; provided, that the Indemnitees shall be third party beneficiaries of Section 11 with rights of enforcement hereunder.
The obligations, representations, warranties, and covenants of Seller under these Terms and Conditions and each Contract that by their nature are intended or reasonably expected to survive the expiration or termination of these Terms and Conditions and each Contract, including 4, 5, 6, 8, 9, 10, 11, 12, 13, and 15 shall survive the expiration or termination of the Terms and Conditions and each Contract created hereunder.
CMI (but not other Purchasers) shall have the right to amend any provisions of these Terms and Conditions at any time by revising or updating its website. It is the responsibility of each Seller to be familiar with the current Terms and Conditions.
15.13 Entire Agreement.
These Terms and Conditions and each Contract constitute the entire agreement between the Parties with respect to their subject matter, and supersedes all prior oral or written representations or agreements by the Parties with respect to the subject matter thereof. Except as authorized in Section 15.11, no subsequent terms, conditions, understandings, or agreements purporting to modify these Terms and Conditions or the Contract will be binding unless in writing and signed by both Parties.