Terms and Conditions of Purchase
This Agreement is entered into between Battery Handling Solutions, Inc., a Missouri corporation (“Buyer”) and the Seller.
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
DEFINITIONS:“Agreement” means these Terms and Conditions together with the Order pursuant to which goods or services are being provided and all documents specifically referenced herein or in such Order.
“Deliverables” means Goods and/or Services depending on the context.
“Goods” means materials or products described in Orders, the purchase of which is governed by the terms of this Agreement.
“Nonconforming Goods” means any goods received by Buyer from Seller that: (i) do not conform to the model number/UPC/SKU listed in the applicable Order; (ii) on visual inspection, Buyer determines are otherwise defective. Where the context requires, Nonconforming Goods are deemed to be Goods for the purposes of this Agreement.
“Order” means a document, electronic or hard copy, issued by Buyer to Seller, in the form of a purchase order or similar document, referring to these Terms and Conditions and ordering Deliverables.
“Seller” means the individual, partnership, corporation, or any other entity contracting to furnish the Deliverables described in the Order, to whom the Order is issued by Buyer.
“Services” means services (whether or not it is ancillary to a sale of Goods) described in Orders, the purchase of which is governed by the terms of this Agreement.
“Terms and Conditions” means these Standard Terms and Conditions of Purchase.
1.0 SCOPE OF AGREEMENT:1.1 This Agreement must be accepted as indicated in Orders, or, if Orders do not provide, in writing by Seller within the time specified on the face of the Order, or, if not so specified, within a reasonable time of Seller’s receipt hereof.
1.2 Whether construed as an offer, acceptance or confirmation, these Terms and Conditions include all documents and exhibits attached hereto and all other terms incorporated by reference herein, including Orders. This Agreement shall constitute the final, complete and exclusive statement of this contract and may not be modified or rescinded except by a written change order issued by the Buyer. If this Agreement constitutes an offer by the Buyer to purchase the Goods and/or Services specified herein, and at the price(s) and with the delivery date(s) also specified herein, Seller shall indicate its acceptance of this Agreement by verbal acceptance communicated to the Buyer, by written acceptance on the face of the Order received by the Seller, by other written confirmation received by the Buyer, by commencing work on this Order in any manner, expressly conditioned on notice of such commencement of work received by the Buyer, or by the delivery of the Goods or Services within the time for such delivery as stated in the Order. Regardless of the manner or medium of acceptance time is of the essence. As an offer, this Agreement expressly limits acceptance to its terms and conditions, and notification of objection to any different or additional terms in any response to this offer from the Buyer is hereby given. If the Order is construed as an acceptance of the Seller’s offer, this acceptance is expressly conditioned on the offeror’s assent to any additional or different terms contained in this Agreement. If this Agreement is construed as a confirmation of an existing contract, the parties agree that this Agreement constitutes the final, complete and exclusive terms and conditions of the contract between the parties. If the parties have otherwise completed a signed, written contract, the parties agree that the use of this Agreement to place orders for goods or services pursuant to such a contract shall be construed to supplement the terms of such written contract only to the extent that the terms and conditions of this Agreement are not inconsistent with such written contract. Regardless of its construction as an offer, acceptance, confirmation or use to place orders for goods or services pursuant to an earlier contract, this Agreement incorporates by reference all terms of the Uniform Commercial Code providing any protection for the Buyer, including, without limitation, all express and implied warranty protection and all Buyer’s remedies under the Uniform Commercial Code.
2.0 PRICE AND PAYMENT:2.1 Payment terms: Unless otherwise agreed to and indicated in writing on Buyer’s Order, payment terms will be net sixty (60) days following (i) receipt of conforming Deliverables delivered pursuant to Buyer’s delivery requirements, and (ii) satisfaction of the invoicing requirements (electronic or otherwise) set forth in this Agreement. All prices include, and Seller is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, Taxes (as defined below), tariffs and duties, insurance, and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Deliverables. All prices are firm and are not subject to increase for any reason, including changes in market conditions, increases in raw material, component, labor, or overhead costs, or because of labor disruptions, changes in program timing or length, or fluctuations in production volumes.
2.2 Seller warrants that the agreed price for the Deliverables is not less favorable than that currently extended to any other buyer for the same or like Deliverables in similar quantities or services.
2.3 Invoices: All invoices must contain the following information: Purchase order number, Buyers item number, description of items, quantities, unit prices, and taxes. Payments of invoices shall not constitute acceptance of Deliverables and shall be subject to adjustment for shortages, defects and other failure of Seller to meet the requirements of this Agreements. Buyer or any of its affiliated companies may set off any amount owed by Seller or any of its affiliated companies to Buyer or any of its affiliated companies against any amount owed by Buyer hereunder. In accordance with U.S. Bureau of Customs and Border Protection (“CBP”) Regulations – 19 CFR 141.81, a commercial invoice will be presented with each merchandise shipment entering the U.S.A. Such invoice shall be prepared in the English language (or an English translation is attached thereto), in accordance with 19 CFR 141.86-141.89.
2.4 Buyer shall not be obligated to pay for any Deliverable if the invoice for such Deliverable is received more than twelve (12) months after the receipt of the Deliverable.
3.0 TAXES:3.1 Tax Liability: Seller shall properly impose upon, collect and remit from Buyer any and all sales, use, excise, transaction and value added taxes, customs, duties, contributions, or similar levies by taxing jurisdictions as required by law (“Taxes”) that are imposed by any government Tax authority (“Tax Authority”) upon Buyer’s payments pursuant to this Agreement, and are the legal obligation of the Buyer. Each of the Taxes shall be separately stated on all applicable Seller Invoices.
3.2 Tax Exceptions: No Taxes, interest, penalties, or other additions to Taxes, shall be collected by Seller if, pursuant to this Agreement or the laws of the applicable Tax Authority, (a) the transaction is not subject to Taxes; (b) Buyer has been authorized to pay Taxes directly to the appropriate Tax Authority; or (c) Seller is obligated to pay the Taxes. Seller shall also pay any Taxes arising out of its willful misconduct or negligence for which Buyer becomes liable.
3.3 Tax Assessment Notification: Seller shall, upon receipt from any Tax Authority of any levy, notice, assessment, or withholding of any Taxes for which Buyer may be obligated, notify Buyer in writing directed to: Manager, Tax Compliance, BHS, INC., 1488 Page Industrial Blvd, St. Louis, MO 63132.
3.4 Tax Disputes: Seller shall cooperate in the equitable resolution of disputes pertaining to any Taxes arising from this Agreement. If Buyer may directly contest any Taxes in its own name, then it may do so and, to the extent permitted by law, withhold payment during contest pendency. If Buyer is not so permitted, Seller shall supply Buyer with the information and documents as Buyer may reasonable request to control or participate in any proceeding to the extent permitted herein.
3.5 Tax Refund and Indemnification: If Seller receives a refund of any Taxes attributable to Buyer; Seller shall pay such amount to Buyer within thirty (30) days of receipt. Seller shall indemnify Buyer against any and all losses, costs, and expenses (including reasonable attorneys’ fees) which result from Seller’s violation of its obligations under this Section 3.0 .
3.6 Delivery of Software: Seller shall deliver electronically via the internet or CD, as indicated on Buyer’s Purchase Order, all software and code ownership deliverables of any type (including manuals) that are the subject of, rather than are ancillary to, this Agreement. Seller shall separately itemize the costs of electronically delivered software, licenses, fees and all Services on all invoices. Invoices shall clearly indicate the manner of software delivery by inclusion of the phrase, “software delivered electronically to the customer via the internet [or CD].” License locations should clearly be stipulated in the Agreement to allow for proper allocation of any Taxes owed. If the software is subject to ongoing Orders by Buyer, or upon written request by Buyer, Seller shall deposit the software’s applicable source code and corresponding documentation into escrow (so that the software can be sufficiently recreated by a third party), for the benefit of Buyer. Should the Seller breach this Agreement or become insolvent / file for bankruptcy, Seller shall cause Buyer to gain access to the escrow holding software’s source code so that Buyer may replicate the software for the purposes set forth in the applicable Order(s).
3.7 Personal Property Taxes: Buyer shall report and remit any property-related Taxes relating to personal property for which the Buyer retains title pursuant to this Agreement, accruing prior to and after the commencement of this Agreement. Where Seller possesses Buyer-owned personal property, Seller shall notify Buyer of any disposal or movement of such property for which Buyer retains title.
4.0 DELIVERY:4.1 Seller shall furnish the Deliverables in accordance with the delivery terms stated on the Order and if delivery dates are not stated, Seller shall offer Buyer its best delivery dates, subject to written acceptance by Buyer (“Delivery Dates”). Time is of the essence in Seller’s performance of the Order, and Seller shall deliver Goods and perform Services by the Delivery Dates. Buyer may from time-to-time adjust its delivery schedules, and unless otherwise agreed in writing or as provided in Section 7.1 below, such changes in schedule shall not affect the prices of the Deliverables ordered. Any change or variation to this Order by Seller shall only be effective if agreed in writing by Buyer. Buyer may defer payment or return at Seller’s expense, any Deliverables delivered in advance of the scheduled Delivery Date or in excess of the quantity specified for such items.
4.2 Unless otherwise expressly set forth in the Order, the delivery terms for Goods shall be: DDP Buyer’s facility (Incoterms 2010) provided that Seller shall be responsible for unloading of the Goods in accordance with the Buyer’s instructions and that risk of unloading will be that of the Seller. Standard delivery instructions of the relevant procurement department apply and may be obtained through the relevant Buyer procurement representative. Title shall pass to Buyer on delivery of Goods as provided in this Section and applicable Incoterm. If delivery is required to be made to a third party (drop shipment), title and risk of loss shall pass to Buyer when delivered at the consignee’s facility.
4.3 Notice of Delay: Whenever an actual or potential reason for delay (including but not limited to labor disputes), delays or threatens to delay the timely performance of the Order, Seller agrees to immediately notify Buyer in writing all relevant information and, subject to the force majeure provision set forth herein, to make and pay for all necessary changes to fulfill its obligations under the Order and mitigate the potential impact of any such delay. Buyer has the right without incurring any liability to cancel any Deliverables affected by the delay in performance.
4.4 Cessation of Production: Seller shall give Buyer at least one hundred eighty (180) days prior written notice of the permanent discontinuance of production of items covered by Orders, provided however that compliance with this provision shall in no way relieve the Seller from its obligations under the Order.
4.5 Packing: Seller shall not charge separately for packaging, packing or boxing, unless Buyer has agreed to such charges in writing. Seller shall not combine in the same container, material that is to be delivered to different receiving locations. All wood products used in packaging shall be ISPM 15 compliant.
4.6 Marking: Unless otherwise agreed in writing, exterior containers shall be marked with the following: (1) address of Buyer site and Seller; (2) Order number; (3) part number; (4) special markings called for on the Order; (5) quantity; and (6) (where applicable) Seller Code or other vendor identification number. In accordance with CBP Regulations 18 CFR 134, unless excepted, every article of foreign origin (or its container) imported into the U.S.A. shall be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the article or its container will permit, in such a manner as to indicate the ultimate purchaser in the U.S.A., and the English name of the country of origin of the article. This requirement is in addition to any individual part marking required by Buyer’s engineering drawings.
4.7 Bills of Lading: Bills of Lading shall reference the Order and Buyer’s receiving address and purchase point of contact. When Buyer will be the importer of record, Seller will follow the instructions of Buyer’s designated representative regarding completion of documentation used in the importation process and proper declaration of value. The original copy of the bill of lading with Seller’s invoice shall be mailed to the location specified by the Buyer’s procurement contact, or if no location is specified by Buyer, to Buyer’s applicable Accounts Payable Department or Accounts Payable service provider.
4.8 Packing Slip: Seller shall include an itemized packing slip with all shipments that will adequately identify the Goods shipped, including Buyer part and number.
4.9 Shipping and Approved Carriers: On Orders where Buyer either pays for or reimburses Seller directly for shipping costs, Goods shall be shipped in accordance with routing instructions furnished by Buyer. If such instructions are not received, Goods shall be shipped via least expensive method sufficient to meet delivery requirements, but always through Buyer approved carriers. In the event additional information or clarification is required, contact the BHS, INC. front desk at 314-423-7091 or (email@example.com).
5.0 PRIME OR CUSTOMER REQUIREMENTS:5.1 When Seller’s work hereunder will form a part of the work, whether Goods or Services, under a contract that Buyer has with another or others, Seller agrees, by its acceptance hereof, to be bound to Buyer in the same manner and to the same extent that Buyer is bound to its customer. Seller further agrees that Buyer’s contract with its customer is incorporated herein and forms and integral part of this Agreement and that it has examined the drawings, specifications, terms and conditions of such contract and that it will be bound by such drawings, specifications, terms and conditions. Access to all such documentation will be provided to Seller upon request.
6.0 INSPECTION/ACCEPTANCE/REJECTION/RETURNS:6.1 All Deliverables being provided to Buyer’s specifications covered by the Order may be inspected and tested by Buyer and/or its designee, at all reasonable times and places, including during manufacture. Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests.
6.2 All inspection records relating to Deliverables covered by an Order and being manufactured to Buyer’s specifications and/or drawings shall be available to Buyer during the performance of the Order and for such longer periods as specified by Buyer.
6.3 Acceptance of Deliverables. If Buyer determines, in its sole discretion, that Deliverables delivered under this Agreement are Nonconforming Goods, Buyer may, at its option (a) if such Deliverables are Nonconforming Goods, either (i() reject Nonconforming Goods (including entire lots of Goods) for a refund plus any inspection, test, shipping, handling, and transportation charges paid by Buyer; or (ii) require prompt correction or replacement of such Deliverables on Buyer's written instruction, or (b) retain such Deliverables. The exercise by Buyer of any other rights available to Buyer under this Agreement or a particular Order or pursuant to applicable law shall not be limited. Buyer shall ship from any location, at Seller's expense and risk of loss, the Nonconforming Goods to the nearest authorized Seller location. If Buyer exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Seller's expense and risk of loss, the replaced Goods to Seller’s location in a timely manner
6.4 Returns. Without limiting its rights under this Agreement, Buyer may return Deliverables purchased under this Agreement (or Order) for any or no reason at all; provided that Buyer returns the Deliverables within ninety (90) days of receipt. Any returns shall be made at Seller’s expense and risk of loss.
7.0 CHANGE ORDERS:7.1 Buyer shall have the right at any time prior to the Delivery Date of Deliverables to make changes in drawings, designs, specifications, packaging, place of delivery, nature and duration of Services, and method of transportation, or require any additional or diminished work. If any such changes cause in an increase or decrease in the cost or the time required for the performance or otherwise affect any other provision of the Order, an equitable adjustment shall be made and the Order shall be modified in writing accordingly. Seller’s claims for adjustment under this Section shall be deemed waived unless asserted in writing (including the amount of the claim) and delivered to Buyer within thirty (30) days from the date Seller receives the change order. Seller agrees to accept any and all changes subject to this paragraph.
8.0 WARRANTIES8.1 Seller expressly covenants and warrants that all Deliverables shall (a) conform to the specifications, drawings, samples or other description upon which the Order is based, (b) shall be suitable for the purpose intended, (c) new, (d) comply with all other Order conditions, (e) be merchantable, (f) free from defects in material and workmanship, (g) free from liens, or encumbrances of title, and (h) that Deliverables of Seller’s design will be free from defect in design. Inspection, test, acceptance or use of Deliverables furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller further warrants that all work will be performed in a professional manner in accordance with the highest industry standards, ensuring Deliverables are fit and safe for their intended purpose. Seller warrants that Goods purchased and delivered pursuant to this Agreement shall be free of any chemicals and substances that are governed by the State of California’s Health & Safety Code Section 25249.6, otherwise known as California Proposition 65 or any similar law of any other State or locality of the United States (collectively, “Prop 65 Laws”). Seller warrants that if the Goods purchased and delivered pursuant to this Agreement become subject to any Prop 65 Laws it will immediately notify Buyer in writing identifying with specificity particular Prop 65 Law involved and the material, component and substance of the Goods subject to such Prop 65 Law. This warranty shall run to Buyer, its successors, assigns, customers, and the users of the Deliverables. If any Deliverables covered by the Order are defective or otherwise not in conformity with the requirements of the Order, or do not conform with the warranties stated herein, Buyer may, (i) rescind the Order as to such Deliverables, and rescind the entire Agreement if such defect or non-conformity materially affects the Buyer; (ii) accept such Deliverables at an equitable reduction in price; or (iii) reject such Deliverables and require the delivery of replacements. Rejected Deliverables may be returned to Seller at Seller’s cost. Deliveries of replacements shall be made promptly and be accompanied by a written notice specifying that such Deliverables are replacements. If Seller fails to deliver required replacements promptly, Buyer may (i) replace, obtain or correct such Deliverables and charge Seller the cost occasioned Buyer thereby, and/or (ii) terminate the Order for cause. Buyer’s failure to insist on a performance of any of the terms of this Order, its failure to exercise any right or privilege or its waiver of any breach hereunder shall not affect a waiver of any other right or privilege, whether of the same or similar type. The foregoing warranties and remedies shall be in addition to any warranties or remedies provided by law.
8.2 Permits and Licenses: Except for permits and/or licenses required by statute or regulation to be obtained by the Buyer, Seller agrees to obtain and maintain, at its own expense, all permits, licenses and other forms of documentation required by Seller in order to comply with all existing national, state, provincial or local laws, ordinances, and regulations, or of other governmental agency, which may be applicable to Seller’s performance of work hereunder. Buyer reserves the right to review and approve all applications, permits, and licenses prior to the commencement of any work hereunder.
8.3 Product Support Obligation: Seller shall maintain, at its expense, the ability to, and shall, provide product support for the Deliverables for ten (10) years after the last Order is placed Buyer under this agreement. Seller also warrants that it shall obtain and assign or otherwise provide to Buyer the benefits of warranties and guarantees provided by manufacturers or suppliers of material or equipment incorporated into the Goods or Services, and shall perform its responsibilities so that such warranties or guarantees remain in full effect.
8.4 Recalls. If Buyer, any of Buyer's customers, Seller or any governmental authority determines that any Goods sold to Buyer are defective (meaning that they do not comport with the warranties set forth herein) and a recall campaign is necessary, either party may implement such recall campaign. Buyer must return the defective Goods to Seller or destroy such Goods, as determined by Buyer, at Seller's sole cost and risk. Without prejudice to Buyer's rights under this Section, if a recall campaign is implemented, at Buyer's option and Seller's sole cost, Seller shall promptly either repair or replace, or credit or refund prices for, all such returned Goods under the terms of this Section.
9.0 ENVIRONMENTAL HEALTH & SAFETY:9.1 Test Reports: Any Seller test reports or other test results related to the Deliverables shall be provided to Buyer as set forth in terms of the Order, or if not specified in the Order terms, upon Buyers request.
9.2 Environmental and Safety: Seller agrees to comply with Buyer’s environmental, health and safety standards during Seller’s performance hereunder when at Buyer’s jobsites/facilities/customer site safety rules, and shall comply with all environmental, health and safety laws and regulations applicable to Seller.
9.3 Use of Hazardous Substances: Seller agrees to provide, upon and as requested by Buyer to satisfy any applicable regulatory or customer requirements restricting the use of any hazardous substances, all reasonably necessary documentation to verify the material composition, on a substance by substance basis including quantity used of each substance of any Goods ordered by Buyer and/or of any process used to make, assemble, use, maintain or repair any Goods ordered by Buyer. Separately and/or alternatively, Seller agrees to provide, upon and as requested by Buyer to satisfy any applicable regulatory or customer requirements restricting the use of any hazardous substances, all reasonably necessary documentation to verify that any Goods ordered by Buyer and/or any process used to make, assemble, use, maintain or repair any Goods ordered by Buyer, do not contain particular hazardous substances specified by Buyer.
10.0 SECURITY10.1 Each Seller personnel that requires unescorted access to Buyer’s facilities or systems shall meet the following minimum requirements: (a) Be a citizen, permanent resident alien, or otherwise authorized to work in the country in which the person will be providing services; and (b) Not to be convicted of any criminal offence resulting in a sentence of more than one year of prison (even if such sentence is deferred or suspended)
10.2 Seller shall provide to Buyer in advance of Buyer’s granting access to a Seller personnel to Buyer’s facilities or systems (i) a certification that the person meets the requirements of Section 10.1(a) and (ii) the criminal record of the person to the extent permissible by law or if the access is required in the United States, the results of a background check provided by a recognized/licensed provider regarding felony issues.
11.0 C-TPAT SUPPLY CHAIN SECURITY: (APPLICABLE TO ORDERS IN WHICH GOODS WILL BE SHIPPED INTO THE UNITED STATES)11.1 The U.S. Bureau of Customs and Border Protection has created the Customs Trade Partnership Against Terrorism (“C-TPAT”) program in which the Government and business will work to protect the supply chain from the introduction of terrorist contraband (weapons, explosives, biological, nuclear or chemical agents, etc.) in shipments originating from off-shore for delivery into the United States. Buyer is committed to be in full compliance with the C-TPAT program and requires its suppliers to comply.
11.2 Seller agrees that during the period in which it ships goods to Buyer, it and its subcontractors who either ship directly or package goods for shipment will either (i) be certified under (ii) demonstrate to Buyer’s Bureau of Customs and Border Protection or (ii) demonstrate to Buyer’s satisfaction that it meets the security requirements C-TPAT. Accordingly, Seller must either provide Buyer with documentation that it and such subcontractors are certified (e.g. – C-TPAT certification or Status Verification Interface (SVI) number) or provide documentation and evidence satisfactory to Buyer to demonstrate compliance with C-TPAT security requirements. C-TPAT requirements can be found at www.cbp.gov.
11.3 Upon five days prior written notice, Buyer, or its designee, may audit all pertinent books and records of Seller and its subcontractors, and make reasonable inspection of Seller’s and its subcontractor’s premises, in order to verify compliance with the requirements of this provision.
11.4 Any delay in delivery due to Seller’s failure to comply with this provision shall not relieve Seller of its obligations and shall not constitute a force majeure or give rise to an excusable delay.
12.0 INTELLECTUAL PROPERTY:12.1 “Intellectual Property” means all proposals, prototypes, designs, methods, processes, inventions, ornamental designs, works of authorship, requirements, specifications, graphical displays, interfaces, marks, knowhow, algorithms, codes, computer programs, software, strategies, invention disclosures, patents, copyrights, mask works, industrial property rights, trademarks, trade secrets, and other information or rights that are created or made possible by Seller (alone or acting with Buyer or others) and result from the Seller’s performance under this Agreement or are included in any Deliverables to Buyer.
12.2 Seller shall promptly disclose in writing to Buyer all Intellectual Property conceived or first reduced to practice or created in the performance of this Agreement. Seller (i) agrees that any works of authorship created in the course of this Agreement by Seller shall be deemed “Works Made for Hire”, and (ii) agrees that for any works of authorship that do not qualify as “Works Made for Hire”, Seller hereby assigns to Buyer all right, title, and interest it has to any copyright in such works. Seller hereby irrevocably waives all “moral rights”, all rights of privacy and publicity, and the like, in all materials provided to Buyer. In addition to the foregoing, and to the extent permissible by law, Seller, hereby irrevocably assigns and hereby agrees to assign to Buyer all right, title and interest, free and clear of all liens and encumbrances, to all Intellectual Property conceived or first reduced to practice or created by Seller, and employees or any others used by Seller, in the performance of this Agreement.
12.3 To the extent Buyer does not otherwise have the right(s) under this Agreement, Seller hereby grants to Buyer worldwide, non-exclusive, perpetual, fully-paid, irrevocable, transferable licenses (with rights to grant sublicenses) to (i) make, have made, use, offer for sale, sell, import, (ii) copy, distribute, publicly display, make derivative works, embed, operate, install, maintain, repair, and otherwise freely exploit in connection with the Deliverables and similar, related or integrated goods or services, all Intellectual Property which Seller provides or has provided to Buyer either during the term of or prior to the effective date of this Agreement, in any and all media now known or later developed.
12.4 The tangible and intangible work product developed under this Agreement, whether or not delivered under this Agreement, included, but not limited to, all analyses, recommendations, reports, and memoranda, shall become property of Buyer.
12.5 Seller will cooperate fully and will execute or cause to be executed in any documents required to establish, defend and enforce Buyer’s Intellectual Property rights under this Agreement.
12.6 Seller represents and warrants to the Buyer that, to its knowledge, Seller has all rights and authority to perform its obligations under this Section regarding Intellectual Property, or that the Intellectual Property is in the public domain, and the use thereof by Buyer, its representatives, distributors, dealers, end users, and other direct and indirect customers does not and shall not infringe any proprietary rights of any third party. As of the date of this Agreement, Seller represents that it has not received any notice or claim alleging that the Intellectual Property or Deliverables or any portion thereof, infringes proprietary rights of a third party.
13.0 BUYERS PROPERTY:13.1 All tools, equipment dies, gauges, models, drawings or other materials furnished by Buyer to Seller or made by Seller for the purpose of this Agreement or paid for by the Buyer and all replacements thereof and materials attached thereto, shall be and remain the property of Buyer. All Buyer’s property and, whenever applicable, each individual item thereof, will be plainly marked and otherwise adequately identified by Seller as being Buyer’s property, will at Seller’s expense be safely stored (separate and apart from Seller’s property whenever practicable) and maintained and will be kept free of all liens, claims, encumbrances and interests of third parties. Seller shall be responsible for loss of and damage to Buyer’s property. Seller will not substitute any property for Buyer’s property, will not deliver or make available to any third party any of Buyer’s property or any property or goods developed, manufactured or created with the aid of any of Buyer’s property, except in fulfilling the Orders of Buyer. Upon completion by Seller of the Order, or upon the written request of Buyer at any time, Seller will prepare all Buyer’s property for shipment and deliver such property to Buyer in the same condition as originally received by Seller, reasonable wear and tear expected. Buyer shall have the right, at all reasonable times, upon prior notice to enter Seller’s premises to inspect any and all Buyer’s property and any property and any property or goods manufactured, developed or created with the aid of any Buyer’s property.
14.0 CONFIDENTIAL INFORMATION:14.1 Unless specifically and comprehensively covered by the confidentiality, nondisclosure and non-use provisions of another document signed by Buyer and Seller (a) all information furnished by Buyer or any other person acting on behalf of Buyer and all information learned or observed about Buyer or its operations through performing this Order is confidential and Seller shall not disclose any such information to any other person, or use such information for any purpose other than performing this Order without Buyer’s express written consent and (b) all information in tangible form, including drawings, samples, models, specifications, or other documents provided by Buyer or prepared by Seller for Buyer shall be returned to Buyer promptly upon request. Seller shall not publicize the fact that Buyer has contracted to purchase Goods or Services from Seller, not shall any information relating to this Order be disclosed without Buyer’s written consent. Unless otherwise agreed in writing, no information disclosed by Seller to Buyer shall be deemed confidential and Seller shall have no rights against Buyer with respect to Buyer’s use thereof.
15.0 GENERAL INDEMNIFICATION AND LIMITATION OF DAMAGES:15.1 Seller shall indemnify, protect, defend and save the Buyer, its officers, directors and Buyer’s affiliates and their officers and directors harmless from all suits, claims, losses, damages, injuries, costs or expenses (including attorneys’ fees) arising out of, or caused by, Seller’s performance hereof or any defects in the Deliverables.
15.2 UNDER NO CIRCUMSTANCES SHALL BUYER BE LIABLE FOR SPECIAL, INDIRECT PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE OR BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
16.0 INFRINGEMENT INDEMNIFICATION:16.1 Seller shall indemnify and hold harmless Buyer, its officers, directors and Buyer’s affiliates and their officers and directors and any third indemnified by Buyer for any losses, costs, damages and liabilities, arising from any threatened, pending, completed or future claim, suit, action, proceeding, or investigation alleging that any manufacture, use, sale or offer for sale of the Deliverables under this Agreement infringe any patent, trademark, copyright or alleging any other violation of an Intellectual Property right; except and to the extent that such alleged infringement arises directly from Seller’s compliance with drawings, specifications and similar requirements originating with, or provided by, Buyer, in which case Buyer shall so indemnify Seller.
16.2 The party required to indemnify under the provisions hereof shall promptly assume and diligently conduct the entire defense of such alleged infringement at its own expense, provided that the party receives prompt written notice of such claim, suit, or action as such is commenced against the other party. Insofar as its interests are affected, the other party shall have the right, at its own expense and without releasing any obligation, liability, or undertaking of the party required to indemnify, to: (i) cooperate in the defense of such claim, and (ii) with permission of the court, to intervene in any such suit or action. Buyer shall have the right to reasonably reject counsel selected by Seller and the right to reject any settlement that would negatively impact Buyer as determined solely by Buyer. Buyer shall have the right to participate with Seller in determining the strategy to defend any such suit or action.
16.3 Notwithstanding any of the above provisions, Buyer shall have the further right, at its own election, to supersede Seller in the defense of any such alleged infringement and thereafter to assume and conduct the same according to Buyer’s sole discretion, in which Seller shall be released from its obligation to pay for attorneys’ fees and court costs. Further Seller, if requested in writing by Buyer, shall cooperate with Buyer in Buyer’s defense of any alleged infringement claim.
17.0 TERMINATION FOR CONVENIENCE:17.1 Buyer may terminate, for its convenience, all or any part of this Agreement (including any open Order) at any time by written notice to Seller. In the event of such termination, Seller shall immediately stop all work and shall immediately cause its supplies or subcontractors to cease such work. Seller shall be paid a reasonable termination charge reflecting the percentage of work performed prior to termination notice plus actual direct costs resulting from termination. Seller shall not be paid for any work performed after receipt of the termination notice, except that necessary to effect termination, nor for any costs incurred which reasonably could have been avoided. Any claims by Seller under this paragraph must be asserted in writing in detail within thirty (30) days of receipt of Buyer’s termination notice.
18.0 TERMINATION FOR CAUSE:18.1 If (i) Seller fails to make any delivery of Goods or perform Services in accordance with Delivery Dates or otherwise fails to comply with the Order and does not remedy such failure within a reasonable time after receipt of written notice thereof, (ii) Seller fails to make progress to such an extent that performance of the Order is endangered, (iii) any proceeding is filed by or against Seller in bankruptcy or insolvency, or for appointment for the benefit of creditors, or (iv) Seller commits any other breach of this Agreement, Buyer may (in addition to any other right or remedy provided by this Agreement or by law) terminate all or any part of this Agreement (or any Order) by written notice to Seller without any liability and may purchase substitute goods and services elsewhere. Seller shall be liable to Buyer for any cost occasioned Buyer thereby. Buyer also may require Seller to transfer title and deliver to Buyer any completed supplies and such partially completed supplies and materials, parts, tools, dies, jogs, fixtures, plans, drawings, information, and contract rights as Seller has specifically produced or specifically acquired for the performance of such part of this Agreement and any technology or information necessary for production of Deliverables. If a court of competent jurisdiction finds that any termination for cause was wrongful, then such termination shall be automatically converted to a termination for convenience and the rights and obligations of the parties will be set forth in the Section hereof titled “Termination for Convenience”. The parties agree that the provisions of this default Section shall not apply to failures or delays in the making of deliveries of Deliverables when such a failure or delay is due to any cause beyond the control and without the fault or negligence of Seller as provided in the force majeure provision set forth herein; provided, however, that Buyer may cancel without liability to Seller its purchase of any such items.
19.0 ASSIGNMENT:19.1 Neither this Agreement nor any interest hereunder shall be assignable by either party unless such assignment is mutually agreed to in writing by the parties hereto; provided, however, that Buyer may assign this Agreement to any corporation with which Buyer may merge or consolidate its business to which this Agreement pertains or to any third party provider of “integrated services” that will purchase the Deliverables for Buyer’s benefit without obtaining the agreement of Seller. Seller shall not subcontract any work called for by this Agreement without Buyer’s prior written approval.
19.2 Claims for money due or to become due to Seller from Buyer arising out of this Agreement may not be assigned, unless such assignment is made to one assignee only and covers all amounts payable under this Agreement and not already paid. Buyer shall be under no obligation to pay such assignee unless and until Buyer has received written notice of the assignment from Seller, a certified copy of the instrument of assignment, and suitable documentary evidence of Seller’s authority to so assign. However, any payments made to a third party subsequent to Buyer’s receipt of notice that any claims. = for money due or to become due hereunder have been assigned or should be paid thereto shall fulfill Buyer’s requirements to make any such payments hereunder.
20.0 OFFSET:20.1 Buyer and its affiliated companies may be required by their customers to fulfill offset and other industrial cooperation obligations in specific countries. These obligations may take the form of technology transfer, purchase of components or services, technical and export assistance or other business transactions.
20.2 Seller acknowledges Buyer’s exclusive rights in and to any offset credit that is generated as a result of this Agreement and any subsequent subcontracting by Seller to fulfill this Agreement. Buyer may use all or any part of the value of the Agreement, including the value of subcontracts placed by Seller for this Agreement, for satisfying offset obligations of Buyer, Buyer’s affiliates or any entity that Buyer transfers such value to. Seller may use the offset credit generated by this Agreement or the subcontracting of this Agreement only upon the receipt of written approval from Buyer.
20.3 Seller shall also support Buyer in any manner reasonably requested by Buyer, and at no additional cost to Buyer, in meeting Buyer’s offset requirements in the amounts in the countries specified by Buyer. Seller shall furnish upon request any certificates or other documents reasonable required by Buyer in fulfillment of Buyer’s offset credits to Buyer, any documents perfecting any rights granted to Buyer in this Section, and take other action as Buyer deems appropriate in order to protect Buyer’s interests in offset credits.
21.0 COMPLIANCE WITH LAWS:21.1 Company represents and warrants that it will comply with all applicable laws in its supply of Deliverables, Goods and Services hereunder.
21.2 To the extent applicable to Goods and Deliverables hereunder, Seller warrants that:
(a) the Deliverables meet or exceed the applicable standards imposed by the Consumer Products Safety Act; and
(b) the Deliverables meet or exceed the safety and health standards established and promulgated under the Federal Occupational Safety and Health Act (Public Law 91-596).
21.3 Seller has complied with all laws, ordinances, rules, and regulations designating certain parties as “denied”, “restricted” or similarly ineligible to do business with U.S.A. entities. Seller shall notify Buyer promptly if Seller is: (i) suspended, debarred, or proposed for suspension or debarment from doing business with the U.S. Government, or (ii) listed or is proposed to be listed by the U.S. Government in any “denial orders,” as a “blocked person,” as a “specifically designated national,” or as a “specifically designated terrorist” for U.S. export administration purposes (collectively, “Debarment”). Seller shall indemnify and hold Buyer harmless against any loss or damages suffered by Buyer as a result of Seller’s Debarment.
21.4 Equal Employment Opportunity: Buyer is a federal contractor that complies fully with Executive Order 11246, as amended, and the applicable regulations contained in 41 CFR Parts 60-1 through 60-50; 29 U.S.C. Section 793 (Section 503 of the Rehabilitation Act) and the applicable regulations contained in 41 CFR Part 60-741; and 38 U.S.C. Section 4212 (Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)) and the applicable regulations contained in 41 CFR Part 60-300. The following provisions are incorporated into this Agreement by reference:
(a) Executive Order 11246 and the Equal Employment Opportunity clause, section 60-1.4(a) of 41 CFR, concerning equal opportunity obligations of federal contractors and sub-contractors;
(b) Executive Orders 11701 and 11758, and the Affirmative Action clauses, sections 60-300.5(a) and 60-741.5(a) of 41 CFR, concerning affirmative action obligations for protected veterans and workers with disabilities of federal contractors and subcontractors
(c) 41 CFR 60-300.5(a) and 60-741.5(a), which prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities;
(d) U.S.A. Immigration laws; and
(e) Executive Order 13496 and the Employee Notice clause, section 471.2(b) and Appendix A to Subpart A of Part 471 of 29 CFR, regarding notification of employee rights under federal labor law.
21.5 MBE/WBE: If Seller is a Minority Owned Business Enterprise or a Women Owned Business Enterprise, Seller shall provide a current certificate on an annual basis and promptly notify Buyer if such status is lost.
21.6 Gratuities: Seller has not and will not offer or give to any employee, agent or representative of Buyer any gratuity and/or gift other than items of nominal value with a view toward securing any business from Buyer by influencing such person with respect to the terms, conditions, or performance of any contract with or order from Buyer. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Seller.
21.7 Drawback: Upon request, Seller agrees to furnish completed drawback certificates and retain substantiating documentation pursuant to 19 U.S.C. Section 1313.
21.8 NAFTA: If applicable, Seller will furnish annual certificates in accordance with the North American Free Trade Act (“NAFTA”) per 19CFR, Part 181 only on Deliverables which have met NAFTA rules of eligibility and maintain record keeping to support qualification. Related costs will be the responsibility of Seller.
21.9 REACH: (a) Seller expressly warrants that all the products and/or materials supplied in the European Union (“EU”) under this Agreement will be supplied in full compliance with the provisions of the European Regulations concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (the “REACH Regulation”).
(b) Seller expressly warrants that all the substances in the products and materials supplied in the EU that require registration are or will be pre-registered (for phase-in substances) and registered within the applicable REACH statutory deadlines.
(c) To the extent that the products and/or materials supplied under this Agreement are imported by Buyer or one of its affiliates or customers in the EU and such fact is communicated to Seller, Seller expressly undertakes to appoint an Only Representative to pre-register and register the substances in these products and/or materials that require registration or, if so agreed on a case by case basis by Buyer, to supply Buyer at Seller’s own cost with all necessary data and information needed for Buyer to pre-register and register the substances in these products that require registration, and to reimburse Buyer for the registration fees paid for these substances. Furthermore, Seller expressly undertakes to notify the European Chemicals Agency of any substances of very high concern as defined either in article 57 of the REACH Regulation (prior to publishing one of the “candidate list”) or as identified on the “candidate list” (as published in accordance with Article 59.1 or the REACH Regulation) that are contained in these products and/or materials and that require notification or, if so agreed on a case by case basis by Buyer, to supply Buyer at Seller’s own cost with all necessary data and information needed for Buyer to notify the European Chemicals Agency of substances in these products that require notification and to reimburse Buyer for any associated fees.
(d) To the extent that the products supplied by seller qualify as “articles” under REACH, Seller hereby expressly undertakes to investigate and communicate to Buyer if there are any substances intended to be released from these articles that require registration under REACH and if there are any substances of very high concern as defined either in article 57 of the REACH Regulation (prior to publishing of the “candidate list”) or as identified on the “candidate list” (published in accordance with Article 59.1 of the REACH Regulation and present in these articles or parts thereof above 0.1%, in which case Seller shall inform Buyer of the identity of this/these substance(s) and its/their concentration in these articles. This obligation also applies to articles already supplied under this Agreement at the time of the inclusion of the substances concerned on the candidate list.
(e) Seller expressly warrants that all the substances, products and/or materials supplied under this Agreement in the EU are in compliance with the restrictions of Annex XVII of REACH, which will replace Directive 76/769/EEC on June 1, 2009. In addition, Seller undertakes to properly and timely inform Buyer of any additional restrictions set forth by the REACH Regulation or otherwise undertaken by the relevant authorities in the implementation of the REACH Regulation, including but not limited to, any restriction on use or listing in Annex XIV of the REACH Regulation for Authorization, impacting or likely to impact to use, sale or disposal of any substance contained in the products and/or materials supplied under this Agreement.
(f) Seller also undertakes to timely provide the Buyer with all relevant information on the products and/or materials supplied under this Agreement that Seller and/or its suppliers are required to communicate down the supply chain (that is, any subsequent purchaser or user) under the REACH Regulation, and in any case, to provide all the information necessary for the Buyer and/or the actors down its supply chain to timely and accurately fulfill their obligations under the REACH Regulation.
(g) For the avoidance of doubt, Seller shall bear all costs, charges and expenses related to pre-registration and registration under the REACH Regulation of the chemical substances that are the subject of this Agreement.
21.10 Import Security Filing: Seller shall comply with 19 CFR 149.1-6. For all ocean shipments destined for the United States, an Import Security Filing (ISF) Notification must be sent by fax or e-mail to the BHS, INC. Tech Support Center, (firstname.lastname@example.org) or as otherwise instructed. The Pre-Notification shall be sent a minimum of 72 hours before loading. Additional instructions and information may be obtained from the BHS, INC. app, BHS Optima.
21.11 Ingredients and Materials Disclosure. Upon Buyer's request, Seller shall promptly provide to Buyer, in such form and detail as Buyer requests, a list of all ingredients and materials incorporated in the Goods, the amount of such ingredients and materials, and information concerning any changes in or additions to such ingredients and materials. Without limitation of the foregoing, on Buyer's request, Seller shall provide to Buyer all information (in sufficient detail), with written certifications thereof, to enable Buyer to timely comply with all of Buyer's and Buyer's customers' due diligence, disclosure and audit requirements under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") and Rule 13p-1 and Form SD under the Securities Exchange Act of 1934, and all similar, applicable statutes and regulations, including due inquiry of Seller's supply chain (and certifications by such suppliers) identifying conflict minerals (as defined in Section 1502(e)(4) of the Dodd-Frank Act) contained in each Product and the country of origin of such conflict minerals (or, following due inquiry, why such country of origin cannot be determined).
21.12 Covenant to Provide Import- and Export-Related Information. Without prejudice to Buyer's rights and remedies under Section 21.1, on Buyer's request Seller shall promptly provide all information necessary to export and import Goods under this Agreement, including, as applicable, the Export Control Classification Numbers (ECCN) and subheadings or munitions list category numbers, and shall notify Buyer of any changes to the information provided by Seller to export and import Goods under this Agreement.
22.0 PUBLICITY:22.1 Seller shall not make or authorize any news release, advertisement, or other disclosure which shall deny or confirm the existence of this Agreement or which shall make use of Buyer’s name or logo without the prior written consent of Buyer, except as may be reasonably required to perform this Agreement.
23.0 INSURANCE:23.1 Without limiting Seller’s duty to defend, hold harmless and indemnify hereunder, Seller agrees to secure and carry as a minimum during the entire term of this Agreement and any Order, the following insurance:
(a) Workers’ Compensation Insurance, inclusive of an alternate employer endorsement, in an amount sufficient by virtue of the laws of the U.S.A., foreign country, state, or other governmental subdivision in which the work or any portion of the work is performed and Employer’s Liability Insurance in the amount of $1,000,000 for any one occurrence;
(b) General Liability Insurance including Premises and Contractual Liability, in which the limit of liability for property damage and bodily injuries, including accidental death, shall be at a minimum, a combined single limit of $5,000,000 for any one occurrence, unless some other amount is agreed to in writing;
(c) If Seller vehicles are used on Buyer’s premises and/or used to accomplish work under this Agreement or an Order or otherwise on behalf of Buyer, Automobile Liability Insurance in which the limit of liability for property damage and bodily injuries, including accidental death, shall be a combined single limit of $2,000,000 for any one occurrence;
(d) If Seller or its subcontractors have Buyer’s materials or equipment in its care, custody or control, Seller shall maintain All Risk Property Insurance in an amount sufficient to meet or exceed the replacement value of such material; and
(e) If Seller is performing professional services on behalf of Buyer, Seller shall maintain Professional Liability Insurance with a limit of not less than $5,000,000 unless some other amount is agreed to in writing.
23.2 All insurance shall be issued by companies authorized to do business under the laws of jurisdiction in which all or part of the Services are to be performed and must have an AM Best financial rating of A-or better or an equivalent rating by another rating agency acceptable to Buyer.
23.3 The insurance coverage’s described above shall be in a form satisfactory to Buyer, and shall contain a provision prohibiting cancellation except upon at least ten (10) days’ prior notice to Buyer. All such insurance policies will be primary in the event of a loss arising out of Seller’s performance of work and shall provide that where there is more than one insured the policy will operate, except for the limits of liability, as if there were a separate policy covering each insured and shall operate, except for the limits of liability, as if there were a separate policy covering each insured or, in the case of All Risk Property Insurance, naming Seller and Buyer as lost payees, shall be filed with Buyer upon execution of this Agreement and before commencement of any work hereunder, and within a reasonable time after any renewals or changes to such policies are issued. To the extent permitted by law, Seller and its insurer(s) agree that subrogation rights against Buyer are hereby waived. Seller shall reflect such waiver in any policy(ies) required under this Agreement and shall advise the amount of available policy limits as of execution of this Agreement and shall identify the amounts of any self-insured retention.
23.4 The certificate of insurance shall identify the contract number or work to be performed and shall acknowledge that such coverage applies to liabilities incurred by Seller, its employees, invitees or agents under the Agreement and that such insurance shall not be invalidated by any act or neglect of Seller whether or not such act or neglect is a breach or violation of any warranty, declarations or conditions of the policies.
23.5 Seller agrees to insert the applicable substance of this provision in all major subcontracts entered into by Seller to support work performed under the Order.
24.0 AUDIT RIGHTS:24.1 In addition to any other inspection or audit rights granted to Buyer hereunder, Buyer may inspect and audit, on reasonable notice, Seller’s books, records and its facilities, or such parts of its facilities as may be engaged in the performance of this Agreement, if the Order: a) is a time and material order, b) is a cost based order, or c) provides for advance or progress payments based on costs incurred by Seller.
25.0 FORCE MAJEURE / DISASTER RECOVERY:25.1 Neither Seller nor any Buyer shall be liable for damages for any failure or delay in the performance of this Agreement or any Order resulting from causes beyond its reasonable control including, but not limited to, unforeseeable events such as acts of God, acts of Government, war, court order, riots, natural disasters, and labor strikes. Buyer may cancel without liability to Seller its purchase of any Deliverables affected by Seller’s failure or delay in performance. The party incurring the delay shall give timely notice to the others of any such event and shall use all reasonable efforts to avoid or remove the cause and resume performance with minimum delay. If requested by Buyer, the parties shall jointly prepare a contingency plan to address the potential impact of any such event.
25.2 Disaster Recovery: Seller that is: (i) a sole source of supply; or (ii) providing Deliverables whose lead-time exceeds one hundred twenty (120) days, shall develop and maintain a Disaster Recovery Plan. The said plan must include strategy and actions for recovery and continuation of business, related to production of Seller’s Deliverables furnished under this Agreement, in the event of a disaster or emergency in order to prevent or limit interruption of supply of Deliverables. Seller shall furnish a copy of Disaster Recovery Plan to Buyer upon request.
26.0 DISPUTE RESOLUTION/GOVERNING LAW:26.1 Both parties agree that they will endeavor to resolve any disputes arising from or related to this Agreement amicably through discussions with each other; and that prior to either party filing legal action against the other (except for equitable actions that may be necessary to protect a party’s rights), they will enter into informal settlement discussions between management personnel of each party. The settlement discussions will commence following receipt of written notice by one party to the other and will conclude within a 60-day period, unless the parties agree to a different time period. Such settlement discussions will include attempts that are at least two tiered; meaning that if one level of management from each side cannot resolve the dispute, then each party will appoint a higher level of management to review the dispute and endeavor to reach a resolution. The purpose of this Section is to prevent costly litigation where early frank and pragmatic discussions between the parties could avert such litigation.
26.2 This Agreement shall be interpreted in accordance with and governed by the laws of the State of Missouri, as if executed and fully performed in that state. The Parties further agree and consent that any action against UIC that arises out of or is related directly or indirectly to this Agreement shall be brought exclusively in, and any other action that arises out of or is related directly or indirectly to this Agreement may be brought in, the Circuit Court for the County of St. Louis, Missouri, USA, or the United States District Court for the Eastern District of Missouri, Eastern Division. Both UIC and Company hereby submit to the personal jurisdiction of such courts with respect to any such action. To the extent that there is to be a delivery or performance of Services hereunder, such Services shall be deemed "goods" within the meaning of the Missouri Uniform Commercial Code. Notwithstanding the foregoing, if Buyer in good faith determines that enforcement of a judgement granted by a Missouri court would not be given full faith and credit by a court in a jurisdiction where enforcement may be sought, Buyer may bring the action in that jurisdiction under Missouri law. The parties specifically disclaim application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. All rights of Seller to commence any court action or proceeding with respect to this Order shall terminate one (1) year after the cause of action has accrued.
27.0 MISCELLANEOUS:27.1 Duty to Proceed: Seller shall proceed diligently with the performance of this Agreement. Except as expressly authorized in writing by Buyer, no failure of Seller and Buyer to reach any agreement regarding a dispute related to this Agreement shall excuse Seller from proceeding. During the pendency of any dispute, Buyer shall continue to pay in accordance with this Agreement for Seller’s performance related to matters not in dispute. Notwithstanding the generality of the foregoing, Buyer shall retain its rights with respect to setoff and withholding.
27.2 Independent Contractor: Seller shall perform the services required under this Agreement as an independent contractor and shall have exclusive control and direction of the persons engaged by Seller to perform such services, including, but not limited to, employees of Seller working at Buyer facilities. Seller assumes full responsibility for the acts and omissions for such persons. Seller shall have exclusive liability for the payment of and compliance with regulations pertaining to local, state and federal or other governmental entity payroll taxes or contributions, and taxes for unemployment insurances, workers’ compensation, social security and/or similar or related protection for such persons, as required by applicable law. Seller shall have no power to legally bind, or act on behalf of, Buyer and shall not hold itself out as an agent of Buyer.
27.3 Survival: All obligations and duties under any provisions, which by their nature extend beyond the expiration or termination of this Agreement, including but not limited to warranties, indemnifications, intellectual property (including protection of proprietary information) shall survive the expiration or other termination of this Agreement of which these provisions are made a part.
27.4 Waiver: Buyer’s failure to seek a remedy for any breach by Seller of Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege hereunder shall not thereafter be deemed a waiver for any such terms, conditions, rights or privileges or any other terms, conditions, or privileges whether of the same or similar type. Acceptance of any Deliverables or payment therefore shall not waive any breach.
27.5 Remedies Cumulative: The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity.
27.6 Partial Invalidity: If in any instance any provision of this Agreement shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms unless the purposes of the Agreement can no longer be preserved by doing so.
27.7 Interpretation: This Agreement shall be construed as if drafted jointly by the parties and no provision in this Agreement shall be interpreted for or against any party because that party or that party’s legal representative drafted the provision.
27.8 Captions: The captions, headings, section numbers, and table of contents appearing in this Agreement have been inserted as a matter of convenience and for reference only and in no way define, limit or enlarge the scope or meaning of this Agreement or any provision hereof.
27.9 Seller Code of Conduct: Buyer expects Seller to conform its conduct to a statement or code of ethical business conduct suitable to its business. At a minimum, it shall establish the minimum standard that Seller shall comply with all pertinent laws and regulations, and may address Seller’s policies regarding workplace health and safety; labor standards as required by local law or regulation, including avoiding the use of child or forced labor; protection of the environment and resources, including efficiency of Seller’s products and reduction of wastes, emissions, energy consumption, and materials of concern; product safety and quality; and anti-corruption.
27.10 Employees of Buyer: Client acknowledges that Buyer has invested substantial time, effort, and resources in the recruitment, training, development and retention of its employees. Client expressly warrants, represents, and agrees that it will not, for any reason whatsoever with an eighteen (18) month period following completion of this Agreement, independently retain or otherwise hire, employ, or utilize any of Buyer’s employees without the express agreement of Buyer. If Client violates this provision, then Client shall pay Buyer, as stipulated damages, the sum of three times said employees annual salary. Client specifically represents, warrants, and agrees that said sum is reasonable given the cost of recruitment and training and the other losses which Buyer would incur to its business a result of the loss of its employee.
27.11 Client Default: If any legal action or other proceeding is brought by or against Buyer to enforce any provision of this Agreement, then Buyer shall be entitled to recover its costs and attorneys’ fees paid or incurred at all matters of court and levels of appeal, in addition to any other relief to which Buyer may be entitled.
28.0 ENTIRE AGREEMENT:28.1 This document shall be deemed to contain the entire agreement between Buyer and Seller and to constitute the complete and exclusive expression of the terms of agreement, all prior or contemporaneous written or oral agreements or negotiations with respect to such terms as are included herein or are the subject matter hereof being merged herein.