Terms & Conditions of Purchase
GENERAL PURCHASING TERMS AND CONDITIONS
FOR UNITED GRINDING NORTH AMERICA, INC. PROCUREMENTS
These terms and conditions, as supplemented by the terms stated or referenced on the face of or at-tached to the Purchase Order issued by Buyer, together with the Purchase Order and any attachments, instructions or requirements furnished to Seller by Buyer in connection with the Purchase Order shall be the exclusive statement of the agreement (the “Agreement”) between Buyer and Seller. Seller expressly accepts these terms and conditions and agrees that any additional, different or inconsistent terms pro-vided by Seller (in Seller’s quotation or acknowledgment or otherwise) will be ineffective and are hereby rejected by Buyer, unless specifically accepted in writing by Buyer in a separate written expressed excep-tion to the foregoing rule.
1. DEFINITIONS
”Asbestos” shall mean to include but not be limited to chrysotile, amosite, crocidolite, tremolite asbestos,
anthophyllite asbestos, actinolite asbestos, and any of these minerals that has been chemically treated and/or altered.
”Buyer” shall mean United Grinding North America, Inc. issuing the Purchase Order to Seller.
”Parties” shall mean Buyer and Seller collectively and ”Party” means either one of them.
”Purchase Order” shall mean the purchase order issued by Buyer to Seller, and any attachments, draw-ings, specifications or other documents that are incorporated by reference, as it may be amended, modi-fied or supplemented from time to time in accordance with the terms thereof.
”Seller” shall mean the company that receives the Purchase Order, together with its parent, subsidiaries and affiliates, if any, of Seller.
”Work” shall mean labor, services, materials, supplies, products, equipment, information, software, sys-tems, data, drawings, designs, specifications, or reports furnished by Seller to Buyer in accordance with the Purchase Order.
2. PURCHASE ORDER
Buyer’s commitment to purchase Work arises only upon Buyer’s issuance of a Purchase Order to Seller and Seller’s acceptance of Buyer’s Purchase Order as specified hereunder.
3. ACCEPTANCE
Without limiting the manner or method of Seller’s acceptance of a Purchase Order, a Purchase Order is deemed accepted by Seller if (i) Seller’s written rejection of such Purchase Order is not received by Buyer within five (5) business days after Seller’s receipt of such Purchase Order, or (ii) prior to the expiration of such five (5) business days, Seller commences work on or ships any portion of Works identified in the Pur-chase Order. Acceptance is limited to terms of the Agreement. If Buyer’s issuance of a Purchase Order is for any reason deemed an acceptance of a prior offer of Seller, such acceptance is limited to the terms of the Agreement.
4. COMMUNICATIONS
All written communications must be directed to Buyer's purchasing representative, as identified in the Pur-chase Order at Buyer’s home office, 2100 United Grinding Boulevard, Miamisburg, OH 45342 or as other-wise designated in writing by Buyer. No adjustments to the Work shall be made unless authorized in writ-ing by Buyer prior to implementation. Any such adjustment must be confirmed by a change notice to the Purchase Order executed by authorized representatives of both Parties.
5. DELIVERY
A. Time is of the essence for the Purchase Order. The delivery terms for the Work shall be as set forth in the Purchase Order. Seller shall furnish sufficient labor, material, services, management, plant facilities and equipment and shall work such hours, including night shift, overtime, weekend and holiday work as may be required to assure compliance with the established delivery dates, all at no additional charge to Buyer. Delivery, in whole or in part, shall not be made more than five (5) calendar days prior to the deliv-ery date specified herein, unless agreed in writing by Buyer. Seller shall be responsible for paying any ex-press delivery or similar charges necessary to meet established delivery dates. If the Purchase Order does not specify liquidated damages, then Seller shall be responsible for Buyer’s actual costs and dam-ages resulting from late delivery of the Work, whether or not foreseeable at the time of performance.
B. If liquidated damages for delay in delivery or completion are set forth in the Purchase Order, Seller ex-pressly agrees that
(a) such liquidated damages were specifically negotiated by the Parties and are in lieu of Buyer’s actual damages for delay, which both Parties agree such damages would be difficult or impossible to calculate,
(b) such liquidated damages constitute a fair and reasonable estimate of the amount of damages that would be incurred by Buyer in the event of such delays in delivery or completion of the Work in light of anticipated harm, and the difficulties of proof of and inconvenience or non-feasibility of obtaining any adequate remedy,
(c) such liquidated damages are not intended as and shall not be deemed or construed as penal-ties,
(d) it waives any right to contest the validity or enforceability of such liquidated damages, and
(e) such liquidated damages shall be in addition to any other rights or remedies Seller may have at law or in equity.
Notwithstanding any such payment of liquidated damages for late delivery, Seller shall remain obligated to meet the delivery terms.
C. Seller shall be responsible for packaging all equipment/materials and loading each shipment made un-der the Purchase Order on carrier’s conveyance in accordance with packaging specifications and require-ments stated in the Purchase Order. If the Purchase Order does not state packaging specifications and other related shipping requirements, Seller shall be responsible for proper packaging and loading of each shipment on carrier’s conveyance in a manner sufficient to prevent damage during transportation.
D. Seller shall be responsible for marking all products provided as part of the Work to indicate the applica-ble country of origin. Such marking shall be clear, conspicuous and permanent. If the product is not capa-ble of being marked, the outer-most box or container shall be marked with the country of origin.
E. Seller shall be responsible for providing all necessary shipping documents, including, but not limited to, customs invoices, as applicable, and packing lists in accordance with Buyer’s requirements.
F. Seller shall provide all relevant documentation, as required by Buyer or applicable laws and regulations. Such documentation shall include the Export Control Classification Numbers, if known.
G. In the event the Purchase Order indicates Buyer is arranging for transportation and paying the related charges or if otherwise specified in the Purchase Order, Seller shall use approved contract carriers desig-nated by Buyer and shall comply with the guidelines or instructions provided by Buyer. If Seller fails to use approved carriers or otherwise fails to follow Buyer’s guidelines or instructions, Seller shall be solely re-sponsible for any additional shipping and transportation charges and any damages resulting from such failure.
H. Seller shall, if applicable, comply with United States Importer Security Filing (ISF) requirements, also known as 10+2, which requires Seller to submit specific information for all its ocean shipments destined for US ports pursuant to US Customs Border Protection (CBP) regulations. If Seller fails to provide com-plete and accurate information to the ISF filing agent identified by Buyer pursuant to US Customs Border Protection regulations, then such failure may result in delays, detention of the cargo or of the ocean ves-sel, or liquidated damages charged by US Customs Border
Protection. Seller shall reimburse Buyer for any liquidated damages, penalties, fines, detention costs or other costs or expenses incurred by Buyer as a result of Seller’s noncompliance with ISF Notification re-quirements within thirty (30) calendar days after receipt of invoice from Buyer.
I. Seller shall comply with the Customs-Trade Partnership Against Terrorism (C-TPAT) and the World Customs Organization’s SAFE Framework of Standards for security requirements. Without limiting the generality of the preceding, Seller must implement reasonable security control standards which address the following areas when delivering merchandise to Buyer in the United States:
i) Procedural Security: Seller will have procedures in place to protect against unauthorized mate-rial being introduced into the Work.
ii) Physical & Access Security: Seller’s facilities will have adequate security measures installed to protect against unauthorized access and to resist unlawful entry to Seller’s facilities, including but not limited to adequate security measures to confirm the identity of Seller’s employees, visitors, and vendors, and information technology security to prevent unauthorized access to Seller’s infor-mation technology systems.
iii) Personnel Security: Seller will conduct employment screening in accordance with the local laws of the location of Seller’s facilities or offices, including background checks and identity verification.
iv) Education and Training Awareness: Seller will implement a security awareness training pro-gram which trains its employees on
a) appropriate ways of securing Seller’s cargo;
b) how to identify and address unauthorized access to Seller’s cargo; and
c) communication protocols for notifying governmental agencies when illegal activities are present or suspected.
v) Transportation Security: Seller will implement reasonable steps to protect against the introduc-tion of unauthorized personnel and material in any transport conveyance (e.g., containers, trucks, drums, etc.).
vi) Notification to Buyer: If Seller suspects a security breach in Seller’s supply chain or such a breach is discovered or suspected before or after dispatch of the Work from Seller’s facility, Seller must notify Buyer immediately in writing, describing the nature of the actual or alleged security breach, what actions the Seller has taken to investigate and remediate any breach and what, if any, confidential information of Buyer was disclosed or made available to unauthorized parties as a result of such security breach.
6. TITLE AND RISK OF LOSS
A. Title to the Work shall pass to Buyer at the earlier of
(a) payment for such Work, or
(b) receipt of the Work by Buyer per the delivery terms in the Purchase Order. In the event of ad-vance or progress payments, Seller shall
(i) to the extent feasible, identify or otherwise mark the Work as Buyer’s property;
(ii) execute and deliver such documents as may be deemed necessary by Buyer to con-firm that title to such Work has passed to Buyer, including without limitation, granting to Buyer a security interest in and to that portion of Work for which Buyer has made ad-vanced or progress payments and consenting to Buyer perfecting such security interest by filing, amending or renewing UCC-1 financing statements with respect to such Work; and
(iii) if requested by Buyer, provide an advance payment bond which shall be acceptable in form and substance to Buyer. All Work shall be delivered free and clear of any liens or claims by Seller, Seller’s suppliers or any other third party.
B. Seller represents and warrants that to the extent permitted by applicable law, it
waives and releases any and all liens, claims or rights of lien which it has or may have against Buyer or Buyer’s customer (or any property owned by Buyer or Buyer’s customer) on account of the Work furnished pursuant to the Purchase Order.
C. Seller agrees to indemnify, defend and save harmless Buyer and Buyer’s customer, their assigns and affiliates from any claims or demands for payment in connection with Work performed by Seller or Seller’s suppliers or subcontractors of any tier under the Purchase Order and Seller shall pay any costs and ex-penses including counsel or attorney’s fees incurred by Buyer, Buyer’s customer or Seller in the defense or settlement of any such claims and demands.
D. Unless otherwise specified in the Purchase Order, risk of loss for the Work or any
portion thereof shall pass to Buyer upon receipt of such Work by Buyer according to the delivery terms in the Purchase Order.
7. TERMS OF PAYMENT
Buyer will compensate Seller in accordance with the payment terms set forth in the Purchase Order. Pay-ments shall be made only upon receipt of a satisfactory invoice detailing the request for payment and only after Buyer has determined that the Work for which payment is being requested has been performed in accordance with the Purchase Order, including submittal of all required shipping documents, manuals, drawings and instructions. Proof of shipment shall be provided by Seller with all invoices. Buyer may de-duct from any payments to Seller any amounts owned by Seller to Buyer under the Agreement, including without limitation, any damages for breach to which Buyer is entitled, any charges or penalties for non-compliance with Buyer’s requirements and any amounts otherwise owed to Buyer under the Agreement. Any payment(s), including final payment, shall not relieve Seller from any of its obligations to Buyer under the Purchase Order.
8. TAXES AND DUTIES
A. The purchase price under this Purchase Order does not include any applicable sales or use taxes. If sales or use taxes are applicable to the Work and Seller is required by applicable law to collect such taxes in the jurisdiction in which the delivery point is located (as identified in the Purchase Order), Seller shall add the applicable sales or use tax to its invoices (as a separate item) and Buyer will pay Seller as an ad-dition to the purchase price upon its verification that such amount is due and payable. Seller shall contact Buyer’s purchasing representative in the event:
(1) the delivery point is not clearly specified;
(2) Seller has reason to believe that tax information identified on the Purchase Order may be in-correct or no required tax information is specified;
(3) Seller believes a tax-exempt certificate or other applicable document is required from Buyer; or
(4) Seller otherwise has any question regarding the issue of sales or use taxes. All other taxes or duties imposed prior to delivery shall be to the account of Seller, including but not limited to prop-erty taxes applicable to the Work imposed prior to delivery and any inventory taxes that may be levied on the Work prior to delivery or which is otherwise in Seller's custody.
B. Buyer shall have all rights to any refund or reimbursement of any import duty paid by Seller in the United States in connection with this Purchase Order. Seller waives any interest in or rights to such refund or reimbursement and agrees to provide, at no cost to Buyer, proof of importation and/or re exportation as the case may be, satisfactory to Buyer and the U.S. Customs administration or other government agency in the United States, and to provide any other supporting documentation as may be reasonably requested by Buyer to enable Buyer to recover duties paid in connection with the Work.
9. REPRESENTATIONS AND WARRANTY
A. Seller warrants that the Work furnished hereunder
(i) shall be free from any defect or nonconformity in design, workmanship and materials for a pe-riod of eighteen (18) months after first placed into service or thirty-six (36) months after the deliver, whichever first occurs;
(ii) shall be in strict compliance with the specifications, performance guaranties and requirements of this Purchase Order and generally accepted engineering and manufacturing standards;
(iii) shall be new and of merchantable quality and fit for the purpose intended; and
(iv) shall not infringe the intellectual property rights of third parties.
B. Seller shall correct any nonconformity with the foregoing warranties at its sole expense and at the direc-tion and sole discretion of Buyer, by promptly accomplishing one or more of the following:
(i) repairing or replacing the nonconformity (and correcting any plans, specifications, or drawings affected);
(ii) furnishing Buyer any materials, parts and instructions necessary to correct or have corrected the nonconformity, including reimbursement for Buyer’s costs; or (iii) paying Buyer a portion of the Purchase Order price.
In the event of any breach or non-compliance by Seller with this warranty obligation, Buyer shall also be entitled to recover any and all costs and expenses incurred directly by Buyer or payable to third parties, including but not limited to additional costs of Buyer’s personnel (based on standard hourly rates) or other labor, evaluation costs, re-working or scrapping costs, additional or premium transportation or testing con-ducted by Buyer.
C. Seller warrants that any technical field assistance or other services furnished by it shall reflect the high-est standards of professional knowledge and judgment and shall be in strict compliance with the require-ments of this Purchase Order. Seller shall correct any nonconformity with this warranty at its sole ex-pense, as directed by Buyer, by promptly (i) re-performing the Work or (ii) paying or refunding to Buyer a corresponding portion of the Purchase Order price.
D. The warranty with respect to any corrected Work shall be subject to the same terms as the original warranty except that the warranty period on any such corrected Work shall be one (1) year from the date of repair or replacement or until the end of the original warranty period, whichever is longer.
E. Seller represents and warrants that all equipment, material, components or parts furnished hereunder are free of Asbestos and Asbestos containing materials.
F. NO ATTEMPT BY SELLER TO DISCLAIM, EXCLUDE, LIMIT OR MODIFY ANY EXPRESS OR IMPLIED WARRANTIES OR SELLER’S LIABILITY FOR DIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES. INCLUDING WITHOUT LIMITATION, LOST PROFITS, SHALL BE OF ANY FORCE OR EFFECT.
8. CHANGES AND MODIFICATIONS
A. Buyer may at any time, by written notice to Seller, make changes or modifications to the Work, includ-ing substitutions of materials or accessories. Such changes or modifications may only be authorized
by Buyer’s purchasing representative. If any such change or modification causes an increase or decrease in the cost of or the time required for performance of the Work, Seller shall notify Buyer in writing immedi-ately and an equitable adjustment in the price or time or both will be negotiated and a written modification will be made to the Purchase Order. Any claim for adjustment by Seller must be asserted in writing within ten (10) calendar days after receipt of notice from Buyer. Nothing contained in this paragraph shall excuse Seller from proceeding with the Purchase Order as changed or modified by Buyer.
B. Any amendment to, or waiver or modification of, any of the terms and conditions ofthe Purchase Order shall only be valid when done in writing and signed by both Buyer and Seller.
C. Seller shall not make any changes or modifications to the Work, including substitutions of materials or accessories, without prior written permission from Buyer’s purchasing representative.
9. INSPECTION AND ACCEPTANCE
A. Buyer may, but shall not be required to, inspect and test Work in progress (including Work performed by Seller’s subcontractors and suppliers) at any time. Such inspections and tests may be performed by Buyer or its representatives, Buyer’s customer or customer’s representatives. If inspections and tests are made on Seller's premises, Seller, without additional charge, shall provide reasonable facilities and assistance for the safety and convenience of Buyer’s inspectors or representatives in performing their duties. Buyer may charge Seller any additional cost of inspection and test when Work is not ready at the time such inspection and test is requested by Buyer. In case of rejection, Buyer shall not be liable for any reduction in value of samples used in connection with such inspection or test. Seller shall maintain a quality control and inspec-tion system acceptable to Buyer. Any inspection by Buyer shall not relieve Seller of any of its obligations in the Purchase Order.
B. Except as otherwise agreed in writing, all Work provided under the Purchase Order
shall be subject to final inspection and acceptance by Buyer at its destination, notwithstanding any previ-ous inspection or acceptance at the source of manufacture. By written notice to Seller, Buyer may back-charge Seller for the costs of correcting any deficiency at destination. If correction at destination is imprac-ticable, Seller shall bear all risks after notice of rejection and shall, at Buyer’s request, promptly make all necessary replacements at Seller’s expense. If Seller fails to make prompt replacements, Buyer may make such replacements and back-charge Seller for excess costs incurred to correct such deficiency. Buyer’s written confirmation of acceptance of Work (or any part thereof) shall not diminish or otherwise reduce Seller’s responsibility or obligations under the Purchase Order.
C. Seller shall provide Buyer and/or Buyer’s customers with access to facilities or records of Seller or its subcontractors relating to the Work for inspection or audit during normal business hour upon reasonable prior written notice.
D. Buyer’s inspection, testing, payment for or retention of Work does not (i) constitute acceptance of Work not in compliance with the Agreement, (ii) affect Buyer’s right to reject or return Work; or (iii) constitute a waiver by Buyer of any Seller representations, warranties or guarantees, or any rights or remedies of Buyer under the Agreement.
10. INSURANCE AND INDEMNITY
A. Seller shall, to the extent permitted by applicable law, defend, indemnify and hold harmless Buyer, its subsidiaries, affiliates, customers and other designated parties from and against any and all losses, ex-penses, liens, claims, demands, and causes of action of every kind and character (including those of the Parties, their agents and employees) for death, personal injury, property damage or any other liability, damages, fines or penalties (except where reimbursement of fines or penalties is prohibited by applicable law) including costs, attorney's fees and settlements arising out of or in connection with the Work, or which arise out of, result from, or are contributed to by
(1) the acts, omissions, fault or negligence in any form of Seller its subcontractors or suppliers, or any other parties for which Seller may be responsible, or any of their respective agents, employ-ees, representatives, or contractors;
(2) any defect in, or condition of the premises on which the Work is to be performed or any equip-ment thereon or any materials furnished by Buyer (or its suppliers and/or customer) to Seller;
(3) any equipment, components, materials or products furnished, sold or otherwise provided under the Purchase Order; or
(4) any breach of any warranty, representation, or guarantee of Seller.
B. Before commencing Work on the premises owned or controlled or used (for purposes of specific performance of Work or otherwise) by Buyer or Buyer’s customer, Seller shall provide and shall require its subcontractors to provide the following types of insurance in amounts not less than indicated below. Seller shall maintain such insurance in full force and effect for a period of two (2) years after this Purchase Order has been fully performed and the Work accepted in writing by Buyer and/or all equipment, implements, and machinery of Seller have been removed from, and all employees, agents, representa-tives and sub agencies, subcontractors and/or suppliers of Seller have left the premises as described above, including any other party’s premises to the extent of and, if so applicable, relevant to carry out the intent of the Work. Buyer, its subsidiaries, affiliates, Buyer’s customer and/or any other designated party as applicable shall be named as an additional insured with respect to the Commercial General Liability (Article 10) B) 3) below) and Automobile Liability (Article 10) B) 4) below) policies/coverage(s). All of Seller’s policies of insurance, except for Workers’ Compensation and Employers Liability, shall be primary insurance and noncontributing with any other insurance maintained by Buyer, its subsidiaries, affiliates, customers and other designated parties. The limits of insurance set forth below may be satisfied by any combination of excess and primary insurance coverage.
1) Worker's Compensation Insurance in accordance with the statutory requirements of the loca-tion in which the Work is performed.
2) Employer's Liability Insurance with a minimum limit of $1,000,000 each occurrence.
3) Commercial General Liability Insurance (including coverage for Premises/Operations, Under-ground, Undermining, Explosion and Collapse (XCU) Hazard, Product/Completed Operations, and Contractual Liability Coverage covering Seller's contractual liability assumed under Article 10) A) above) with minimum limits of $5,000,000 per occurrence.
4) Automobile Liability Insurance including coverage for owned, hired, and non-owned automo-biles with minimum limits of $5,000,000 per occurrence.
The following is required if Work involves such exposures:
5) Environmental Impairment Liability Insurance (including Asbestos) with the same limits of $5,000,000 per occurrence.
6) Proof of Longshoremen's and Harbor Worker's Coverage if so mandated by Federal regulations for the scope of work to be performed by Seller under the Purchase Order.
7) Insurance covering loss or damage to Buyer’s or Buyer’s customer’s property under the care, custody and control of Seller, including without limitation, Buyer’s Furnished Property, on a 100 percent replacement cost basis.
C. Neither the procurement, maintenance or acceptance of insurance coverage by Buyer shall relieve Seller of liability for loss or damage in excess of the policy coverage or limits specified herein or in any way limits or releases Seller of its obligations or liabilities under the Purchase Order.
D. All insurance certificates shall be in a form satisfactory to Buyer and shall stipulate that the insurance will not be canceled nor any change made in the policy and/or coverage(s) without at least thirty (30) cal-endar days prior written notice beginning upon the day of receipt of registered mail concerning same by Buyer. Evidence of insurance is to be furnished before any Work is started and in the amounts stated herein. Seller shall require its insurers to waive all rights of subrogation against Buyer, its affiliates, subsid-iaries, directors, officers, agents and employees, Buyer's customer, and any other party designated as an additional insured under all insurance coverages, including umbrella liability coverages, referenced herein. Failure of Buyer to request certificates of insurance does not constitute a waiver of Seller’s obligations un-der this Article 10.
E. Buyer reserves the right at any time during performance of Work by Seller to require Seller to provide insurance in types and amounts in a form different and/or greater than that stated above with respect to unique circumstances (Work related or otherwise) and as may otherwise be required by customers of Buyer or required by governmental entities.
11. INTELLECTUAL PROPERTY RIGHTS
A. Seller agrees to make prompt and complete disclosure to Buyer of all inventions and disclosures made or conceived as a result of Work performed under the Purchase Order. Seller agrees to keep necessary records supporting such inventions and discoveries and will furnish to Buyer upon request all such rec-ords.
B. Any invention, discovery, proprietary information, software, system, data, drawings, designs, specifica-tions or reports; patents, copyrights, trade secrets, trademarks or other intellectual property; supplied to Seller by or on behalf of Buyer or resulting from the Work initially conceived, designed, developed or per-formed under the Purchase Order shall be solely owned by Buyer. In the event that exclusive title or own-ership rights in any of the foregoing intellectual property assets may not vest in Buyer, Seller hereby grants Buyer a nonexclusive, worldwide, full paid, royalty-free license to use such intellectual property to operate, maintain, make or sell the Work. Buyer shall have the full right to use such intellectual property in any manner without any claim on the part of Seller and without any duty to account to Seller for such use. Seller agrees to assign to Buyer any patent or patent application for the foregoing intellectual property owned by Buyer resulting from Work performed under the Purchase Order, and to provide reasonable support for Buyer's prosecution of such patent application.
C. The Parties agree that any original work of authorship created under the Purchase Order is a work made for hire and made is the course of Work performed for purposes of copyright ownership for which Buyer may apply copyright or other form of intellectual property protection in its own name and may be used by Buyer for any purpose, whatsoever, irrespective of any statement to the contrary appearing on such data, drawing, designs, software and specifications. Unless otherwise approved by Buyer in writing, and without additional cost to Buyer, it is the sole responsibility of Seller to obtain any and all licenses and rights necessary to afford Buyer the foregoing rights. To whatever extent Seller has any interest in any original work or authorship created under the Purchase Order, Seller hereby grants Buyer a non-exclusive license to use, reproduce, copy, sell, and distribute such work, including any derivative works.
D. Seller agrees to grant Buyer permission to include Seller's (including Seller's suppliers and subcontrac-tors of any tier) copyrighted, proprietary and other documents in manuals and instruction books for use by Buyer, its co-venturers and its customers. These documents include, but are not limited to, drawings, sketches, specifications, operating instructions, installation instructions, maintenance and troubleshooting procedures, literature, and marketing brochures furnished to Buyer by Seller.
E. The Purchase Order does not confer or grant, in any manner whatsoever, any license or right under any patent, trademark, trade secret, copyright or other intellectual property right held by Buyer, unless specifically set forth in the body of the Purchase Order.
12. INTELLECTUAL PROPERTY INDEMNIFICATION
A. Seller shall defend, indemnify and hold harmless Buyer, Buyer’s customer, and their officers, agents, and employees from any and all liability, including costs and expenses, for infringement of any patent, copyright, trademark and other intellectual property right arising out of performance by Seller under the Purchase Order or Buyer’s or Buyer’s customer’s possession or use of the Work. Buyer shall inform Seller as soon as practicable of any suit or claim alleging such infringement and shall give Seller such oppor-tunity, if afforded by applicable laws, rules, or regulations to participate in the defense thereof.
B. In case the Work, or any part thereof, as a result of any suit or proceeding so defended is held to con-stitute infringement or its use by Buyer or Buyer’s customer is enjoined, Seller will, at its option and its own expense:
(a) procure for Buyer the right to continue using said Work;
(b) replace it with substantially equivalent non-infringing Work; or
(c) modify it so it becomes non-infringing.
13. PROTECTION OF INFORMATION
A. All information marked or designated as confidential or proprietary including, but not limited to, software data, drawings, designs, specifications, photographs, and sketches relating to Work hereunder
furnished by Buyer to Seller or developed by Seller for Buyer initially under the Purchase Order shall (ex-cept to the extent such information has been independently developed prior to the Purchase Order by Seller or is received by Seller from a third party without restriction) be treated by Seller as Buyer’s confi-dential proprietary information (“Information”).
B. Seller agrees that it will use Buyer’s Information only in connection with the Work
(“Permitted Use”). Seller shall not use such Information for any purpose except the Permitted Use. Seller shall not transmit or further disclose such Information to any third party, including its parent, affiliates, sub-sidiaries or subcontractors without first obtaining the prior written approval of Buyer. In the event that Seller is required by a court or federal, state or local agency to disclose any Information, Seller shall promptly notify Buyer of such order so that Buyer may seek a protective order or take action as it deems appropriate. In such circumstances, Seller shall exercise reasonable efforts to disclose only the minimal amount of Information required to satisfy such order. All Information delivered pursuant to this Purchase Order shall be maintained in confidence with the same level of care as Seller maintains its own confiden-tial and proprietary information but in no event maintained with any less than a reasonable standard of care from the date of disclosure until ten (10) years after the expiration or termination of this
Purchase Order.
C. Seller shall not replicate, make derivatives of, reverse engineer, copy, modify, formulate, analyze or otherwise treat in any manner such information disclosed by Buyer, except for such action as may be re-quired, for the strict purpose of performing the Work, or as authorized by Buyer in writing.
D. Seller’s duties of confidentiality under this Purchase Order shall not apply to Information which Seller can show is the same as information which
(i) is generally known or readily available to the trade or public; or
(ii) was in the possession of Seller or an affiliate of Seller and not subject to a confidentiality
obligation prior to its disclosure hereunder; or
(iii) was legally acquired from a third party without restriction; or
(iv) was developed independently by Seller without benefit of confidential and proprietary infor-mation furnished hereunder by Buyer.
E. Return of Confidential Information. Upon termination of this Agreement or the request of Buyer, Seller shall promptly return all Confidential Information and copies thereof to Buyer.
F. Seller acknowledges that any breach or threatened breach of the confidentiality restrictions contained in this Article 13 will cause irreparable harm to Buyer that cannot be compensated solely by monetary damages. Therefore, in the event of a breach or threatened breach of this Article 13 by Seller, Buyer shall, in addition to any other remedies available to it at law or in equity, have the right to seek injunctive or other specific performance relief without being required to prove the inadequacy of monetary damages or to post a bond or other security.
G. Seller agrees that nothing in this Article 13 shall be construed to limit or negate the common law or statutory rights related to torts or trade secrets where it provides Buyer with broader protection than that provided herein.
14. BUYER FURNISHED PROPERTY
The following additional provisions shall apply to any and all tools, patterns, equipment, material, or other property which is either (i) supplied to Seller by Buyer or (ii) purchased by or on behalf of Buyer to perform the Work (hereinafter "Buyer Furnished Property”). Buyer Furnished Property provided to Seller shall carry no guarantee as to adequacy of form, fit or function with respect to any intended use or fitness for any in-tended purpose by Seller or as such Buyer Furnished Property may be used by Seller in conjunction with any other material and/or property of either Seller or Buyer.
A. Seller shall not use Buyer Furnished Property on any work other than the Work
without the prior written consent of Buyer.
B. Title and all rights to Buyer Furnished Property shall remain with Buyer. Seller shall segregate and clearly mark Buyer Furnished Property to show Buyer's ownership and shall do all things necessary to
preserve Buyer's title thereto, free and clear of all encumbrances. Seller shall, if requested by Buyer, sub-mit to Buyer an itemized inventory showing the description, location, and identifying marks of each item of Buyer Furnished Property. Buyer shall have the right to enter Seller's premises and inspect any and all Buyer Furnished Property. Should Seller fail to perform the duties imposed upon it by this Article
14) B) or should Buyer at any time have reason to believe that its title to, or right to the possession of, any Buyer Furnished Property is threatened, Buyer shall have the right to enter upon Seller's premises and remove any or all such property. Upon completion or termination of the Purchase Order, Seller shall seg-regate and collect in one location all Buyer Furnished Property and shall dispose of the same as Buyer may direct. Buyer reserves the right to abandon Buyer Furnished Property at no additional cost to
Buyer upon issuance of written notification to Seller of such intent.
C. Unless otherwise approved by Buyer in writing, Seller shall, at its own expense, perform all mainte-nance, repairs, and replacements necessary with respect to Buyer Furnished Property so that the
same may remain suitable for the use contemplated hereby and may, at the time required by the Pur-chase Order, be returned to Buyer in as good condition as when received, except for reasonable wear and tear or consumption of materials necessarily resulting from their use.
D. Seller shall give Buyer prompt written notice of any Buyer Furnished Property which upon delivery to Seller is found to be defective. The correction or replacement of such defective Buyer Furnished Property shall be accomplished at Buyer's written direction and expense.
E. Upon delivery, procurement or manufacture of any Buyer Furnished Property, the risk of loss or dam-age shall be upon Seller. Risk of loss or damage shall transfer to Buyer when such property is returned to Buyer in the manner required hereunder.
F. Seller shall defend and indemnify Buyer against any and all liability for damage to Buyer Furnished Property or injury to or death of persons arising from or incidental to the presence or use of Buyer Fur-nished Property by Seller on Seller’s premises, whether such damage, injury, or death be caused by de-fects in such property, negligence in the use thereof, strict liability, or otherwise.
15. DELAYS AND FORCE MAJEURE
A. Seller must notify Buyer in writing within twenty-four (24) hours of the knowledge of and/or occurrence of any event or circumstance which may result in a delay in the performance of the Work. Neither Party shall be considered to be in default or in breach of its obligations under the Purchase Order if and to the extent that its failure or delay in performance is actually caused by a Force Majeure Event. Force Majeure Events means acts of God or nature, acts or orders of civil or military authority, fires, floods, epidemic, pandemic, war, or like occurrences that are beyond the control and without the fault of either Party and which can be demonstrated by the affected Party to have a direct effect on the performance of its obliga-tions under the Purchase Order. Strikes or other labor troubles involving Seller’s employees or those of its subcontractors, if any, will not constitute a Force Majeure Event. Any additional costs and expenses in-curred by Seller by reason of a Force Majeure Event shall be borne exclusively by Seller.
B. Seller must exercise its best efforts to mitigate the effect of such Force Majeure Events on the perfor-mance of the Work. Any relief granted by Buyer to Seller shall be limited to an extension of the
time of performance to the extent caused by the Force Majeure Event, as determined by Buyer. If any Force Majeure Event of delay continues for more than ninety (90) calendar days, Buyer shall have the right, but not the obligation, to terminate the Purchase Order, and Buyer shall be entitled to a refund of any moneys it has paid to Seller.
16. TERMINATION
A. The Purchase Order and any and all rights granted and obligations assumed hereby may be termi-nated by Buyer for its convenience without fault at any time immediately upon written notice to Seller. Upon receipt of a notice of termination and except as otherwise mutually agreed, Seller shall:
1. Stop Work under the Purchase Order on the effective date of the notice of termination; and
2. Submit a termination claim within thirty (30) calendar days after the effective date of the termi-nation notice incorporating all claims of Seller. The amount to which Seller shall be entitled upon complete termination of the Purchase Order shall be determined by the Parties hereto as being a fair and reasonable amount for the effort performed prior to the date of notice of termination. Buyer may deduct any amounts due to Buyer from Seller from the amount to be paid to Seller on other open purchase orders. Buyer's total liability to Seller for such termination shall not exceed the Purchase Order price of the Work to which such termination applies. Further, Seller shall have no claim against Buyer for loss of anticipated profits or consequential damages suffered by reason of such termination.
B. Buyer may terminate the Purchase Order upon the occurrence of any of the following defaults:
(i) Seller fails to perform and/or make delivery of the Work within the time or manner spec-ified in the Purchase Order;
(ii) a breach of any other term, condition, obligation, representation, warranty or guarantee set forth herein shall occur and not be cured within thirty (30) calendar days after Seller shall have notice of such breach;
(iii) Seller fails to make progress so as to endanger performance of the Purchase Order and fails to cure said failure within thirty (30) days after notice thereof has been delivered by Buyer to Seller;
(iv) reasonable grounds for insecurity arise with respect to Seller’s
performance and Seller fails to furnish adequate assurances within ten (10) days after a written demand by Buyer for such assurance;
(v) any breach by Seller of the provisions of Article 17) B) or 17) C);
(vi) any other failure of Seller to timely and fully comply with any of the terms of the Pur-chase Order; or
(vii) Seller becomes insolvent, ceases to do business as a going concern, becomes una-ble to pay its debts generally as they become due; has a petition for an order for relief un-der the bankruptcy or insolvency laws or for reorganization, composition, adjustment
or other relief of debtors under any law filed by or against Seller, makes an assignment for the benefit of creditors; has a receiver or liquidator appointed for Seller, or, has any court of competent jurisdiction order the winding up or liquidation of the affairs of Seller.
In the event of termination for such defaults, Buyer may, in addition to any other remedies available to it at law or in equity, procure the Work from alternative sources as it deems appropriate without any further obligation to Seller including that for partial performance, and Seller shall pay to Buyer any additional costs for Buyer’s re-procurement of the Work covered by the Purchase Order. In addition, Buyer shall have the right to enter Seller's premises in order to remove any Work to
which title has passed to Buyer. In the event that it is determined that Buyer’s exercise of its termination rights under this Article 16)B). was for any reason not justified or otherwise improper, Buyer’s termination of Seller shall be deemed a termination for convenience under Article 16)A). In such event, Seller’s sole remedies in respect of such termination shall be as set forth in Article 16)A).
17. COMPLIANCE
A. Seller agrees to comply with all applicable federal, state and local laws, rules, regulations, codes, exec-utive orders, directives or guidelines, standards, permits, requirements and ordinances (“Applicable Laws”) in the execution and performance of the Purchase Order. Without limitation, Seller agrees to com-ply with the following:
1) Fair Labor Standards Act of 1938, as amended;
2) Occupational Safety and Health Act of 1970, as amended;
3) Toxic Substance Control Act (P.L. 94-469), as amended, and any all laws and government reg-ulations affecting, controlling, limiting, regulating, pertaining or related to emissions, discharges, hazardous, toxic, radioactive, substances, materials or wastes;
4) California Safe Drinking Water and Toxic Environmental Act of 1986 (Proposition 65);
5) anti-bribery and anti-corruption laws, including, as applicable, the United States Foreign Cor-rupt Practices Act and the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions dated 21 November 1997;
6) any applicable laws and regulations concerning the export or import of products or
technology;
7) applicable anti-money laundering, anti-terrorism and related laws of the United States
and, when applicable, the country in which the Work will be performed or where the principal of-fice of Seller is located; and
8) 40 CFR Part 82, Protection of Stratospheric Ozone.
B. Code of Conduct. Seller agrees to the following provisions:
1) Seller will comply with the principles and requirements of the "Code of Conduct for
United Grinding North American Suppliers" attached hereto as Exhibit A (hereinafter the ”Code of Conduct”) as the same may be amended for time to time and provided to Seller;
2) If requested by Buyer, Seller will provide to Buyer
(a) a written self-assessment in the form provided by Buyer, or
(b) a written report approved by Buyer describing the actions taken or to be taken by Seller to assure compliance with the Code of Conduct;
3) Buyer, at its discretion, shall be entitled, to conduct inspections, at Seller’s premises,
in order to verify Seller’s compliance with the Code of Conduct. Inspections may be conducted by Buyer, including its authorized agents and representatives or other designated third parties, upon prior written notice to Seller, during normal business hours. Such inspections shall be in accord-ance with the applicable data protection laws and shall neither unreasonably interfere with Seller’s business operations nor violate any of Seller’s confidentiality agreements with third parties. Seller shall reasonably cooperate in any inspections conducted. Each Party shall bear its own expenses in connection with such inspection;
4) In addition to any other rights and remedies Buyer may have, in the event of
(i) Seller's material or repeated failure to comply with the Code of Conduct or
(ii) Seller's denial of Buyer’s right of inspection as provided for in Article 17) B)3), after providing Seller reasonable notice of such failure and a reasonable opportunity to cure said failure, then Buyer may terminate this Purchase Order without any liability whatsoever. Such termination shall be deemed a termination for default as provided in Article 16)B). Material failures include, but are not limited to, incidents of child labor, corruption and bribery, and failure to comply with the Code of Conduct's environmental protection requirements. The notice and opportunity to cure said fail-ure as provided in Article 17)B)4), shall not apply to violations of requirements and principles re-garding the prohibition of child labor as set out in the Code of Conduct or willful failures to comply with the Code of Conduct’s environmental protection requirements.
C. Seller agrees that it will not, directly or indirectly:
1) Offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any money, gift, or anything of value to any government official, that is an officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candi-date for or appointee to a political or government office, or any political party.
2) Knowingly engage in any transaction which involves:
(i) Receiving, transferring, transporting, retaining, using, structuring, diverting, or hiding the proceeds of any criminal activity whatsoever, including drug trafficking, fraud, and bribery of any individual covered by Article 17) C)1) above;
(ii) Engaging, becoming involved in, financing, supporting financially or otherwise
sponsoring, facilitating, or giving aid or comfort to any terrorist person, activity or organi-zation; and
(iii) Employing, engaging in any transaction or otherwise conducting business with a
””designated person” namely a person or entity that appears on any list issued by the United States or the United Nations with respect to money laundering, terrorism financing, drug trafficking, or economic or military embargoes.
D. Without limiting Seller’s obligations pursuant to the preceding of this Article 17:
(1) Seller warrants that each and every chemical substance or material sold, transferred or deliv-ered under this Purchase Order shall, at the time of sale, transfer or delivery, be on the list of chemical substances compiled and published by the Administrator of the United States Environ-mental Protection Agency pursuant to Section 8(B) of the Toxic Substances Control Act (Public Law 94-469). Seller shall submit to Buyer with each item, the chemical substances which are con-tained in or on the Work deliverable hereunder, or as required by Applicable Laws, Material Safety Data Sheets, prepared in accordance with Applicable Laws (including without limitation the OSHA Hazardous Communication Standard 29 CFR 1910.1200 et seq.).
(2) Seller shall employ only such practices, materials and substances in its performance and deliv-ery of Work, including substances and materials which are part of or contained in the Work deliv-ered hereunder, which are lawful under Applicable Laws.
(3) Seller shall be responsible for all chemical substances or mixtures which it or its subcontrac-tors or suppliers of any tier bring onto the premises of Buyer or its customer and for any excess, waste or residue (including without limitation container of any of such chemicals not consumed in the performance of the Work), resulting from or generated in the performance of any Work. With-out limiting the generality of the foregoing, Seller shall be responsible for lawfully removing and disposing of all such materials, mixtures, containers, residue from their use, in accordance with all Applicable Laws.
(4) Seller represents, warrants and guarantees that Work shall not contain any Conflict Minerals from a Covered Country, unless the Conflict Minerals are sourced from a Conformant Smelter. In addition, Seller shall implement a Conflict Minerals Compliance Program. Seller shall timely re-spond to any inquiries from Buyer regarding Conflict Minerals, maintain records of its Conflict Min-erals-related supplier inquiries, due diligence and resulting decisions for a period of at least five (5) years and furnish those and other relevant records to Buyer upon written request. “Conflict Minerals” means tin, tungsten or gold, irrespective of the source. “Covered Country” means the Democratic Republic of the Congo or an adjoining country. “Conformant Smelter” means a smel-ter or refiner determined to be conformant by the Responsible Minerals Initiative’s Responsible Minerals Assurance Process or another internationally-recognized certification program. “Conflict Minerals Compliance Program” means a Conflict Minerals compliance program that is consistent with OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Af-fected and High-Risk Areas.
E. Prior to commencing any Work, including Work under Article 7)A), on any premises owned, controlled or used by Buyer or Buyer’s designated locations which may include the premises of customers of Buyer, Seller shall provide safety protection for personnel in accordance with all Applicable Laws, regulations and site procedures made available to Seller. In the event Seller fails to provide such protection, Buyer may, at its sole option and without limiting its other rights and remedies, order Seller to cease Work until Seller provides such protection at Seller’s sole cost and expense. If Seller is unable or refuses to take corrective action to provide such protection, Buyer reserves the right to terminate the Purchase Order pursuant to Article 16 without further liability to Buyer and to contract for or otherwise accomplish a continuation of the Work and charge Seller the excess cost caused to Buyer thereby.
F. Seller shall comply with all applicable provisions of Executive Order 11246 of September 24, 1965, as amended, the terms of which are incorporated herein by this reference and made a part of this Purchase Order. It is the policy of Buyer to provide equal employment opportunity and to adhere to federal, state and local laws pertaining thereto. Appropriate action shall be taken by Seller, with respect to itself and any of its subcontractors, vendors and suppliers to ensure compliance with such laws. All federal, state and local equal opportunity and affirmative action requirements with regard to race, gender, creed, color, age, religion, national origin, disability or veteran status, are incorporated herein by reference.
G. If applicable, Seller shall be responsible for obtaining any licenses, permits or approvals necessary, in-cluding acting as the exporter of record, to export any part of the Work from the United States. Seller shall provide Buyer with all relevant U.S. Export Control Classification Numbers and any related information re-quested by Buyer or Buyer’s contract freight forwarder. Seller shall be responsible for providing preference statements, as applicable, in compliance with government regulations, trade agreements and treaties in-cluding but not limited to General System of Preferences (GSP) and the United States, Mexico and Can-ada Agreement (USMCA).
H. Without limiting the generality of the foregoing, Seller warrants that the Work, and any and all parts, components, or material thereof, shall bear all markings, labels, warnings, notices or other information re-quired under any Applicable Law.
I. Seller shall to the extent permitted by Applicable Law defend, indemnify and hold harmless Buyer, its affiliates and customers from and against any and all losses, expenses, claims, demands, and causes of action of every kind and character (including those of the Parties, their agents and employees) for liability, damages, fines or penalties including costs, attorney's fees and settlements arising out of or in connection with any breach of any provision of this Article 17.
J. If Buyer has any concerns or suspects that any violation of the above provisions has taken place, Seller shall cooperate reasonably in good faith to determine whether such a violation occurred and take all ap-propriate action to remedy or redress such a violation.
18. SUBCONTRACTING
Seller shall not subcontract the Work to be supplied under the Purchase Order without the prior written approval of Buyer. This provision shall not apply to purchases of standard commercial articles or raw ma-terials which Seller is required to purchase in order to perform the Work. Buyer reserves the right to review the quality programs, processes and capabilities of all subcontractors or suppliers.
19. ORDER OF PRECEDENCE
The various documents constituting the Agreement shall, insofar as is possible, be so interpreted as to be consistent with one another. In the event of a conflict, ambiguity or inconsistency, the following order of precedence shall apply:
1) the latest change order to the Purchase Order,
2) the initial Purchase Order, and
3) these terms and conditions.
20. ASSIGNMENT
A. The Agreement shall be binding and inure to the benefit of the Parties hereto
and their respective successors and permitted assigns. Seller shall not assign its rights or obligations un-der the Agreement without the prior written consent of Buyer. Any attempted assignment by Seller without Buyer’s prior written consent shall be null and void. Buyer may assign the Agreement, in whole or in part, to any subsidiary, affiliate, or customer of Buyer, or to any successor to the power generation business of Buyer.
B. Seller shall provide Buyer with timely written notification of any change in its ownership or control, finan-cial status or any material change in its business or management.
21. SUSPENSION OF WORK
Buyer may, at any time, by written order to Seller, require Seller to suspend all, or any part of the Work called for by this (a) Purchase Order. Upon receipt of the suspension order, Seller shall immediately com-ply with its terms and take all reasonable steps to minimize any costs for Work related to the suspension order. Buyer may either
(1) cancel the suspension order and in such event, Seller shall resume Work; or
(2) terminate the Work covered by the suspension order as provided in Article 16, Termination, of this Purchase Order. In the event Buyer cancels the suspension order and requests Seller to re-sume the Work, Buyer will provide an equitable adjustment in the delivery date, and Buyer
will modify the Purchase Order accordingly, in writing.
22. DISPUTE RESOLUTION
All disputes that may arise between the Parties regarding the interpretation or application of these terms and the legal effect of these terms shall, to the exclusion of any court of law, be arbitrated, unless the Parties can resolve the dispute by mutual agreement. Either Party shall have the right to submit any dispute to arbitration 90 days after the other Party has been notified in writing as to the nature of the dispute. The arbitration shall be governed by the rules of the American Arbitration Association before a single arbitrator selected by the Parties. If the Parties cannot agree on a single arbitrator, the Parties consent to the arbitrator being selected by the American Arbitration Association in accordance with its rules. The arbitration proceeding shall be governed by the statutes of the State of Ohio, and the proceeding shall be held in the city in that state where the principal office of Seller is located. Anything to the contrary contained in the above-mentioned rules and statutes notwith-standing, the Parties consent that any papers, notices, or process necessary or proper for the institution or con-tinuance of, or relating to any arbitration proceeding, or for the confirmation of an award and entry of judgment on any award made, including appeals in connection with any judgment or award, may be served on each of the Parties by registered mail addressed to the Party at the principal office of the Party, or by personal service on the Party in or without the above-mentioned state. The Parties recognize and consent to the above-men-tioned arbitration association’s jurisdiction over each and every one of them. The decision of the arbitrator shall be binding and conclusive on the Parties, subject to the above appeal procedure. Notwithstanding anything to the contrary herein, either Party may seek injunctive judicial relief from any court having competent jurisdiction for the adjudication of any alleged or actual intellectual property breach or violation of the confidentiality re-strictions set forth in Article 13, hereof. Each Party shall pay for its own attorney costs and fifty percent (50%) of the cost of the arbitrator and any costs and fees charged by the American Arbitration Association.
23. CHOICE OF LAW
This Agreement shall be governed by the laws of the State of Ohio, USA, without regard for its conflict of laws principles. Seller hereby acknowledges receipt of sufficient, good and valuable consideration from Buyer in exchange for the indemnifications made in this Agreement by Seller in favor of Buyer and the other indemnitees identified herein. The 1980 United Nations Convention on the International Sale of Goods, and any subsequent revisions thereto, does not apply to the Purchase Order.
24. RESOLUTION OF CONFLICTS OR INCONSISTENCIES
Seller shall comply with the Agreement and all referenced or documents attached thereto and shall clarify with Buyer any inconsistencies or conflicts. Should Seller fail to resolve any such conflicts or inconsisten-cies in a prompt and timely manner, Seller shall be solely responsible for any errors resulting from any conflicts or inconsistencies. Where documents are referenced, the issue date in effect at the time of the Purchase Order or change notice placement shall be applicable, unless another issue date is specified.
25. NEWS, PUBLICITY OR ADVERTISING RELEASES
No news release or any other publicity in any way relating to Buyer or Seller concerning the Purchase Or-der shall be made by Seller to any news media or the general public without the prior written approval of Buyer.
26. GOVERNMENT CONTRACTS
When the Work furnished is to be used in the performance of a contract or subcontract with a governmen-tal body or other entity, Seller shall strictly comply with the applicable government contract requirements, including without limitation, Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regu-lations Supplement (DFARS).
27. NON-EXCLUSIVE REMEDIES
The rights and remedies of Buyer provided herein shall not be exclusive and are in addition to any other rights and remedies provided by law.
28. ENTIRE AGREEMENT
The Agreement contains the entire agreement of the Parties and expressly limits acceptance to the Agree-ment terms. Failure of any Party to enforce its rights under the Agreement shall not constitute a waiver of such rights or of any other right under the Agreement. To the extent that any provision of the Agreement is ruled illegal, invalid or unenforceable, then such provision shall be deemed severable, and shall not affect the remaining provisions of the Agreement, which shall remain in full force and effect.
EXHIBIT A
Code of Conduct for United Grinding North America, Inc. Suppliers
This Code of Conduct defines the basic requirements placed on United Grinding North America, Inc. sup-pliers of goods and services concerning their responsibilities towards their stakeholders and the environ-ment. United Grinding North America, Inc. reserves the right to reasonably change or amendment the re-quirements of this Code of Conduct due to changes of Applicable Laws or the United Grinding North America, Inc. Compliance Program. In such event United Grinding North America, Inc. expects the sup-plier to accept such reasonable changes.
The supplier declares herewith:
legal compliance to comply with the laws of the applicable legal system(s).
Prohibition of corruption and bribery
to tolerate no form of and not to engage in any form of corruption or bribery, including any pay-ment or other form of benefit conferred on any government official for the purpose of influencing decision making in violation of law.
Respect for the basic human rights of employees
to promote equal opportunities for and treatment of its employees irrespective of skin color, race, nationality, social background, disabilities, sexual orientation, political or religious conviction, sex or age; to respect the personal dignity, privacy and rights of each individual; to refuse to employ or make anyone work against his will; to refuse to tolerate any unacceptable treatment of employees, such as mental cruelty, sexual harassment or discrimination; to prohibit behavior including ges-tures, language and physical contact, that is sexual, coercive, threatening, abusive
or exploitative; to provide fair remuneration and to guarantee the applicable national statutory min-imum wage; to comply with the maximum number of working hours laid down in the applicable laws; to recognize, as far as legally possible, the right of free association of employees and to nei-ther favor nor discriminate against members of employee organizations or trade unions.
Prohibition of child labor
to employ no workers under the age of 15 or, in those countries subject to the developing country exception of the ILO
Convention 138,
to employ no workers under the age of 14.
Health and safety of employees
to take responsibility for the health and safety of its employees; to control hazards and take the best reasonably possible precautionary measures against accidents and occupational
diseases; to provide training and ensure that employees are educated in health and safety issues; to set up or use a reasonable occupational health & safety management system1).
Environmental protection
to act in accordance with the applicable statutory and international standards regarding environ-mental protection; to minimize environmental pollution and make continuous improvements in en-vironmental protection; to set up or use a reasonable environmental management system1).
Supply chain
to use reasonable efforts to promote among its suppliers compliance with this Code of Conduct;
to comply with the principles of non-discrimination with regard to supplier selection and treatment.
INSTRUCTIONS TO SUPPLIER:
COMPLIANCE WITH SHIPPING INSTRUCTIONS MANDATORY FOR PAYMENT ORDER IDENTIFICATION - Show our Purchase Agreement number on all invoices, bills of lading, express re-ceipts and containers.
SHIPPING INSTRUCTIONS - Consign all shipments to the address shown in the SHIP TO block unless otherwise specified. All shipments are to be sent via ground transport unless authorized by the Buyer and indicated in the Purchase Order item. Only United Grinding North America, Inc. approved carriers should be employed for the shipment.
PACKING LIST - Include one packing list attached to the outside and one inside each package shipped, giving our Purchase Agreement number , contents of packages, quantity and weight.
INVOICE - All invoices must carry certification by Seller that the goods or services covered by the invoice were produced in compliance with the Fair Labor Standards Act of 1938, as amended. Submit separate invoice for each shipment and/or each Purchase Agreement showing shipment destination. If SHIP TO is not to buying point, provide one additional copy of invoice, together with bill of lading or express receipt. In the event that invoicing is by a concern other than the Seller, notify our Purchasing Department in writing.
HAZARDOUS MATERIALS REGULATIONS - All shipments of hazardous materials must comply with IATA and regulations in CFR49 as applicable covering description, proper shipping name, class, label, packaging, and other requirements.
SELLER ISF NOTIFICATION REQUIREMENTS: - ALL ocean vessel shipments destined for US ports will require the Seller to submit the appropriate information in support of the US Importer Security Filing (ISF) requirement, also known as 10+2.
Seller shall provide a complete and accurate ISF Notification to the ISF filing agent identified by Buyer a minimum of 72 hours (weekends/ holidays included) before vessel LOADING. This is necessary for Buyer to meet the requirements of US Customs Border Protection (CBP).
If Seller should learn that the ISF Notification submitted was inaccurate, Seller shall notify Buyer's ISF fil-ing agent immediately.
Seller's failure to provide complete and accurate information 72 hours prior to vessel loading may result in delays and / or CBP liquidated damages (up to $5,000 per filing) charged to Buyer.
In addition, these delays impact subsequent logistics execution causing possible additional detention or liquidated damages, also charged to Buyer. Any liquidated damages, penalty, fine detention cost or other cost or expense incurred by Buyer as a result of Seller's noncompliance with this ISF Notification require-ment will be charged back to the Seller.
January 31, 2023