Terms & Conditions of Purchase
Please read these Terms and Conditions of Purchase (these “Terms”) carefully. These Terms materially affect the parties’ obligations. Food Warming Equipment Company, Inc., an Illinois corporation (“Buyer”) is bargaining for and will do business only pursuant to these Terms, and Buyer’s agreement to purchase goods (“Goods”) and/or services (“Services,” and together with any Goods, “Offerings”) is expressly subject to and conditioned on the seller/provider of the Offerings (“Seller”) assenting to these Terms.
1. ACCEPTANCE. This Agreement is an offer to purchase Offerings described on the Purchase Order (as defined below). Buyer may revoke this offer at any time prior to its acceptance by Seller. Commencement of delivery or other indications of acceptance by Seller will result in a firm contract containing all of these Terms. Buyer’s performance is conditioned upon Seller’s assent to these Terms. If any of these Terms are not acceptable to Seller, Seller shall promptly notify Buyer thereof. If Buyer does not receive Seller’s written objection to these Terms within forty-eight (48) hours after Seller receives the Purchase Order from Buyer, or if Seller delivers any Goods or performs any Services, these Terms shall be deemed irrevocably accepted in their entirety by Seller.
2. ENTIRE AGREEMENT. These Terms, together with the email, purchase order, service order, work order, order form or any other ordering document or document of similar effect (regardless of its title or designation) issued by Buyer and referencing these Terms (the “Purchase Order,” and together with these Terms, this “Agreement”), are intended by the parties to be the final expression of their agreement, and are intended also as a complete and exclusive statement of the terms and conditions thereof. For the avoidance of doubt, the provisions of any quotation, order acknowledgement or confirmation, invoice, or other writing additional or contradictory to or inconsistent with these Terms will not constitute a part of the contract of purchase and sale, and Buyer’s failure to object to provisions contained in any document or communication from Seller shall not be construed as an acceptance of any such provision or as a waiver of any term of these Terms. WITHOUT LIMITING THE FOREGOING, BUYER HEREBY EXPRESSLY OBJECTS TO ALL TERMS THAT ARE ADDITIONAL, INCONSISTENT OR CONTRADICTORY TO THESE TERMS, REGARDLESS OF WHETHER SUCH TERMS ARE SPECIFIED IN ANY OTHER EMAIL, QUOTATION, ACKNOWLEDGEMENT, INVOICE, CONFIRMATION, OR OTHER DOCUMENT SUPPLIED BY SELLER, INCLUDING WITHOUT LIMITATION THOSE TERMS AND CONDITIONS LIMITING WARRANTIES, LIABILITY, REMEDIES AND INDEMNITY. No additional, contradictory or inconsistent terms will be effective unless expressly agreed to in a writing hand-signed by Buyer. No online or electronic terms or conditions will be binding upon Buyer even though such terms were “accepted” in order to access or use a system, including but not limited to an order entry system. The parties agree that the URL at which these Terms are accessible may change from time to time, and that any such change will not diminish the applicability of these Terms with respect to future Purchase Orders, notwithstanding any failure or delay in updating such URL in such Purchase Orders.
3. PRICE. Unless otherwise specified on the Purchase Order, the prices quoted and/or charged to Buyer are firm, fixed and inclusive of any and all applicable foreign, federal, state, provincial, and local taxes, charges, duties, costs, tariffs, customs, shipping, freight, packaging, travel and other out of pocket expenses, fees and surcharges. Under no circumstances shall Seller increase the prices or pass through any additional costs, charges, expenses, fees or surcharges of any kind or nature whatsoever, unless specifically agreed to by Buyer in writing or on the Purchase Order. Without limiting the foregoing, in the event of any imposition or increase of tariffs or similar trade-related charges by any governmental authority, Seller shall bear all such additional costs without adjustment to the prices herein, and Buyer shall have no obligation to reimburse or share in any such increased costs. Seller’s price shall not be higher than the price stated on the Purchase Order or the last price quoted by Seller or charged to Buyer, whichever is lower. No amount of specified compensation for any Services will be considered as an estimate but instead always as a not-to-exceed amount to complete the Services, which will be lowered to the extent that, if Seller is performing the Services on a pay-for-time basis, Seller spends less time than contemplated. Seller warrants that the prices charged Buyer on the Purchase Order are no higher than prices charged on orders placed by others for similar services or similar quantities of goods on similar conditions subsequent to the last general announced price change, and Seller agrees that any reduction in the price of Offerings subsequent to the date of the Purchase Order will result in a corresponding reduction in price to the Offerings under this Agreement, effective retroactively to the date of the Purchase Order. If Seller breaches this warranty, the prices of Offerings will be reduced accordingly, retroactive to the date of such breach.
4. PAYMENT. Seller acknowledges that payment by Buyer will not constitute acceptance of Offerings nor impair Buyer’s right to inspect Offerings or invoke any of its remedies provided hereunder or by Applicable Law. Unless otherwise stated on the Purchase Order, payment terms shall be [1%/10 net 30]. The invoice payment period and the determination of any discount periods will start on the later of the date (a) Seller’s invoice is received at Buyer’s accounts payable department, or (b) the applicable Goods or Services are received or completed in full at the appropriate location and accepted by Buyer. If the invoice receipt by Buyer is delinquent, or if a pricing discrepancy results when comparing the invoice amount to the amounts listed on the Purchase Order or the Offerings actually received, processing of the invoice may be delayed and Buyer shall nevertheless be entitled to take any applicable cash discount. All amounts of any discounts not subtracted from the purchase price at the time of payment shall accumulate to Buyer’s benefit, and shall be payable to Buyer upon demand together with 12% annual interest from the date of Buyer’s payment to Seller of the purchase price. Seller shall not retain any lien, security interest or other right in any Goods. Buyer will have no obligation to pay, or other liability with respect to, any amounts for which Seller does not provide a complete and accurate invoice within six (6) months following the delivery or performance of the related Offerings, and Seller hereby irrevocably waives all rights and remedies with respect to such amounts.
5. SHIPMENT; RISK OF LOSS. Unless otherwise specified in this Agreement, all shipments of Goods are DDP (Incoterms 2020) Buyer’s facility. Risk of loss will pass to Buyer at the time Goods are delivered to the appropriate delivery location. Without limiting the foregoing, Seller shall at all times be the importer of record and is responsible for arranging for and paying for shipment of Goods to Buyer’s specified premises. Goods will be labeled, packed and shipped by Seller in accordance with any instructions by Buyer and in accordance with good commercial practices, to ensure the safe loading, transit, and unloading of Goods, and that no damage results from weather or transportation. No extra charges will be allowed for labeling, packing and shipping unless specified on the Purchase Order. Title to Goods will pass to Buyer upon delivery. All shipping dates, or dates for performance of Services, are firm, time being of the essence. The quantity of Goods delivered shall not be greater or less than the amount specified in the Purchase Order unless an additional amount is first ordered by Buyer in writing. In the event of any over or under shipment, Buyer shall be entitled to reject any or all of the shipment. Buyer may return excess quantities to Seller at Seller’s sole risk and expense. Whenever any occurrence or event affecting Seller or its subcontractors or suppliers delays or threatens to delay the timely performance of this Agreement, Seller will immediately give written notice thereof to Buyer.
6. FORECASTS. Any forecasts provided by Buyer are non-binding and for planning purposes only. Any reliance on such forecasts by Seller shall be at Seller’s sole risk and expense. Notwithstanding the foregoing, unless Seller objects to a forecast within forty-eight (48) hours of Seller’s receipt of such forecast, Seller represents, warrants, and guarantees that Seller has adequate uncommitted capacity and resources to supply the forecasted amounts to Buyer.
7. BLANKET PURCHASE ORDERS. In the event that the Purchase Order states that it is a blanket purchase order or similar document which contemplates multiple purchases over the life of the Purchase Order, all quantities listed thereon shall be estimates only, and Buyer reserves the right to increase or decrease the quantity ordered at any time in its sole discretion. Any such Purchase Order shall not create any commitment on the part of Buyer to purchase any quantity of Goods or Services from Seller. With respect to such Purchase Orders, Buyer shall only be obligated to purchase Goods and Services in the quantities and at the times specified in the written instructions of Buyer or Buyer’s authorized agent, and Seller commits to supply such quantities of Goods or Services as Buyer may from time to time order pursuant to such Purchase Orders, at the prices set forth on the Purchase Order, until the expiration of the period set forth in such Purchase Order.
8. CHANGES; CANCELLATION.
(a) Buyer may, at any time before delivery or performance of the Offerings, make changes in quantities, specifications, delivery destinations and schedules, methods of shipping and packing, or other methods of performance. If such changes cause an increase or decrease in prices or in time required for performance, Seller will notify Buyer thereof, with reasonable detail and support for such changes, within five (5) days of receipt of such change by Seller. If Buyer approves of such proposed change, Buyer shall issue a revised Purchase Order. The revised Purchase Order will constitute a change order, and the definition of the Offerings and, if applicable, the amount of compensation and/or the scheduled completion or delivery date will be revised accordingly. If Seller fails to provide timely notice in accordance with the foregoing sentence, such change shall be deemed finally and irrevocably accepted by Seller with no change in price or time for performance.
(b) Seller shall not make any changes to any of the terms of this Agreement, or to the components, composition, processes, materials, methods of manufacture, or material sources of supply with respect to any Offerings without first obtaining Buyer’s prior written consent. Seller must notify Buyer of any such change prior to shipping any affected Goods or providing any affected Services to Buyer. Changes will not be binding on Buyer unless evidenced by a change order issued and signed by Buyer.
9. TERMINATION.
(a) Time is of the essence with respect to all of Seller’s obligations hereunder. Buyer may, in addition to all other remedies available to it, cancel the Purchase Order and/or this Agreement in whole or in part, without liability, if deliveries or performance are not made at the time and in the quantities and manners specified (as applicable), or in the event of any other breach or failure of any other of these Terms, or upon any actual or alleged insolvency of Seller or the commencement of any related reorganization or other proceeding. Acceptance of any Offerings before or after the specified delivery date will not operate as a waiver of any of Buyer’s rights, including its rights to damages for such early or late delivery. In the event of a late shipment, Buyer may require Seller to ship Goods via premium freight at Seller’s sole cost and expense. Any provision in the Purchase Order providing for the delivery of Goods in installments shall not be construed as making the obligations of Seller severable.
(b) Buyer may terminate the Purchase Order and/or this Agreement in whole or in part, at any time and from time to time, and for any reason or no reason, without liability, by notice to Seller (email notice being sufficient). When Seller receives such notice, Seller will take any necessary action to protect the property in Seller’s possession in which Buyer has or may acquire an interest, and, to the extent specified in the notice, stop work and the placement of subcontracts under this Agreement and terminate work under subcontracts outstanding hereunder. Any claim by Seller relating in any way to a Purchase Order must be submitted to Buyer within fifteen (15) days after the completion or the effective date of the termination of such Purchase Order. Buyer reserves the right to accept or reject any such claim in whole or in part. Notwithstanding anything to the contrary contained in the Agreement, under no circumstances will Buyer have any liability to Seller relating to standard, non-custom goods that were not shipped by Seller prior to Buyer’s termination of the Purchase Order, and under no circumstances shall Buyer be liable for any general, special, indirect, incidental, consequential or punitive damages (including, without limitation, lost profits), or for any attorneys’ fees, arising out of or relating to this Agreement.
10. SURVIVAL; TRANSITION ASSISTANCE. The parties’ rights and obligations that by their nature would continue beyond the expiration or termination of this Agreement, including but not limited to those regarding indemnification, insurance, compliance with laws, warranties, confidentiality, and non-solicitation of employees will survive any termination or expiration of this Agreement. Upon the expiration or earlier termination of this Agreement for any reason, to the extent requested by Buyer in writing, Seller shall take the following actions to, on an at cost basis, transition production or performance of the Offerings from Seller to an alternative supplier without disruptions to Buyer’s operations: (i) manufacture, deliver, and sell to Buyer a sufficient inventory bank of the Goods to ensure that the transition will proceed smoothly and without interruption or delay to Buyer’s production of products incorporating the Goods, with pricing equivalent to the pricing in effect immediately before expiration or termination; (ii) for any non-standard (i.e., not “off-the-shelf”) Offerings, promptly: (A) provide to Buyer all requested information and documentation regarding and access to the Offerings; and (B) assign to Buyer or an alternative supplier any or all supply contracts or orders for raw materials relating to this Agreement and any outstanding Purchase Orders; (iii) sell to Buyer, at Seller’s actual cost, any or all work-in-process and any raw-materials inventory relating to this Agreement and any outstanding Purchase Orders; (iv) sell to Buyer any or all finished Goods; and (v) take such other actions as may be reasonably requested by Buyer.
11. NON-EXCLUSIVITY. Nothing herein shall be deemed to require Buyer to purchase Offerings exclusively from Seller. Buyer has the absolute right to purchase goods and services, including Offerings, from sources other than Seller.
12. COMPLIANCE WITH LAWS.
(a) Seller shall ensure that at all times it has and maintains all licenses, permissions, authorizations, consents and permits that it needs in order to carry out its obligations under this Agreement and that it complies with all applicable statutory and regulatory requirements relating to the manufacture, labeling, packaging, storage, handling and delivery of Goods, and the performance of Services. Seller represents and warrants that it is in compliance with, and will continue to comply with, all applicable federal, state, provincial, local and foreign laws, rules, regulations, orders, conventions, policies, codes, treaties, ordinances, standards, and other governmental and regulatory requirements (collectively, “Applicable Laws”) of the country(ies) and jurisdiction(s) of performance, or that relate to the manufacture, labeling, transportation, importation, providing, exportation, licensing, approval or certification of the Offerings, including, without limitation, those relating to environmental matters, the handling and transportation of dangerous goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Seller further represents that neither it nor any of its subcontractors, vendors, agents or other associated third parties will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of Goods or provision of Services under the Agreement.
(b) Seller shall comply with all Applicable Laws related to anti-bribery, anti-corruption, and recordkeeping requirements, including, without limitation, those imposed under the U.S. Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act, and any anti-bribery or anti-corruption laws of similar effect in the jurisdictions where Buyer conducts business (collectively “Anti-Corruption Laws”). Seller represents and warrants that neither it nor any of its subcontractors, vendors, agents or other associated third parties will engage in any form of commercial bribery, nor directly or indirectly provide or offer to provide, anything of value to or for the benefit of, any official or employee of a governmental authority or of any government-owned, government-controlled or government-affiliated entity to obtain or retain any contract, business opportunity or other business benefit, or to influence any act or decision of that person in his/her official capacity. Seller shall comply with all applicable provisions of the (a) the Currency and Foreign Transactions Reporting Act of 1970 (31 U.S.C. 5311 et. seq., (the Bank Secrecy Act)), as amended by Title III of the USA PATRIOT Act, (b) the U.S. Trading with the Enemy Act, and (c) U.S. Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (66 Fed. Reg. 49079), and any other enabling legislation, executive order or regulations issued pursuant or relating thereto applicable in the jurisdictions where it conducts business. Seller shall comply with all Applicable Laws governing the classification, valuation, origination, and marking of foreign-origin products imported into the United States or the other jurisdictions where it conducts business, as well as any similar requirements imposed under bilateral or multilateral Free Trade Agreements that may apply to its transactions with Buyer. Seller shall comply with all applicable economic sanctions, export control laws, and other restrictive trade measures imposed by the United States Government, United Kingdom Government, European Union, and United Nations Security Council, and any other jurisdictions where Buyer conducts business (collectively “Export Control Laws”), including any jurisdiction that imposes economic sanctions and trade embargoes against designated countries, entities, and persons (“Embargoed Targets”). Seller is not an Embargoed Target or subject to any Export Control Laws, and Seller shall not (A) directly or indirectly export, re-export, transship, or otherwise deliver Goods or any portion of Goods to an Embargoed Target, or (B) broker, finance, or otherwise facilitate any transaction in violation of any Export Control Laws. At Buyer’s request, Seller will certify in writing its compliance with the foregoing.
(c) Seller further represents and warrants that none of the Goods (including the packaging of the Goods) contains any PFAS (as defined below) substances in any amount. As used herein, “PFAS” means all substances that include any member of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. Seller shall indemnify, defend, and hold each of the Indemnitees (as defined below) harmless from and against any and all Losses (as defined below) directly or indirectly arising from or relating to, or alleged to arise from or relate to, any Offerings provided to Buyer containing any PFAS, or any violation or alleged violation by the Offerings or its packaging of (i) the California Safer Food Packaging Cookware Act of 2021; (ii) the Maine Act to Stop Perfluoroalkyl and Polyfluoroalkyl Substances Pollution; (iii) the New York Hazardous Packaging Act, Title 2 of Article 37 of the Environmental Conservation Law; (iv) the California Safe Drinking Water and Toxic Enforcement Act of 1986, a.k.a. Proposition 65; and/or (v) any other current or future Applicable Laws or implementing legislation applicable to the prohibition, restriction, or registration of PFAS. Seller will notify Buyer within twenty-four (24) hours of shipping any Good (including the packaging) to Buyer that contains or may potentially contain any PFAS substances in any amount.
13. WARRANTY. In addition to all warranties prescribed by Applicable Law, Seller specifically represents, warrants and guarantees that: (a) all Offerings will conform strictly to their descriptions (whether oral or written, including, without limitation, on Seller’s website or in any catalog, brochure, quotation, or proposal provided by Seller), drawings, samples and any applicable specifications provided or accepted by or available to Buyer; (b) all Offerings shall be of good merchantable quality and fit for the known purposes for which they are sold, provided that Seller shall have the burden of proving that it was unaware of Buyer’s intended purpose, and absent such proof Seller shall be deemed to have known of Buyer’s intent to use the Offerings in whatsoever manner Buyer actually uses the Offerings; (c) all Goods shall be free from defects in design, materials and workmanship; (d) all Goods shall be free and clear of all liens, encumbrances and rights of third parties; (e) Seller has good and marketable title to the Goods; (f) all Goods shall be new and not contain any reconditioned parts or materials; (g) each of Seller’s employees, agents or representatives assigned to provide Services under this Agreement shall have the proper skill, training and background so as to be able to perform such Services in a competent, workmanlike, and professional manner, and Seller shall devote adequate resources to meet its obligations under this Agreement; (h) all Services shall be performed in a timely, competent, workmanlike, and professional manner, in accordance with all applicable industry standards and best practices and to the satisfaction of Buyer; (i) all Goods and Services (and all aspects of the performance thereof) shall comply with all Applicable Laws; and (j) each Offering and Buyer’s use thereof does not and shall not infringe or misappropriate or contribute to the infringement or misappropriation of any patents, copyrights, trademarks, trade names or other intellectual property or proprietary rights. In addition to the foregoing, Seller hereby assigns to Buyer, and covenants to fully cooperate with Buyer in enforcing, all rights and warranties provided by any third party manufacturer of goods or parts which are incorporated in, are a part of, or are provided to Buyer in connection with, the Offerings. All warranties, including warranties prescribed by law, will run to Buyer, its successors, assigns, and customers, and to users and beneficiaries of Offerings.
14. SELLER EXPERTISE; SELLER PERSONNEL. Seller is an expert fully competent in all phases of the work involved in providing the Offerings under this Agreement. Seller agrees not to deny any responsibility or obligation to Buyer on grounds that Buyer provided recommendations, guidance, reviews, inspections, audits, approval, or assistance with regard to any aspect of this Agreement. Seller acknowledges Buyer’s reliance upon Seller’s expertise. Any reviews, inspections, acceptance quality levels, approved vendor lists, bill of materials, or approvals by Buyer will not relieve Seller of its obligations under this Agreement, nor waive any rights that Buyer may have. Seller will source and procure all materials and component parts for all of the Offerings in accordance with the requirements of this Agreement, and shall develop and implement a process for continuous improvement with respect to the same. Seller shall implement and maintain a quality management system or process that ensures 100% product conformance to applicable specifications and Buyer requirements. Buyer shall have the right, in its sole discretion, to require that Seller immediately remove any personnel from performing any Services. In such an event, Seller shall, upon Buyer’s request, promptly furnish replacement personnel with the requisite skills, training, and experience. Buyer’s exercise of, or failure to exercise, its rights under this Section will not in any way limit the obligations of Seller to perform its obligations under this Agreement.
15. CERTIFICATES OF ORIGIN; COMPLIANCE WITH POLICIES. Upon Buyer’s request, Seller shall promptly provide Buyer with all certificates of origin or domestic value-added, and all other information related to the costs and places of origin of the Goods and the materials contained in the Goods or used in the performance of the Services, as may be required by Buyer to comply fully with all customs, tariffs, and other applicable governmental regulations. Seller shall comply with all applicable Buyer policies, and all policies of Buyer’s customers, that are applicable to Seller and/or the Offerings and that Buyer makes Seller aware of. Without limiting the foregoing, Seller, and all suppliers, vendors, service providers, subcontractors, agents and representatives of Seller, shall (a) comply in all respects with any quality procedures and codes of conduct that may be adopted or updated by Buyer from time to time, and as may be posted to Buyer’s website or otherwise made available to Seller from time to time, and (b) ensure that all personnel while on Buyer’s site or any third party sites (including at Buyer’s customer locations) abide by the current procedures and regulations for personnel performing services on such sites and all other reasonable safety, security, and other instructions and directions issued by Buyer, as well as all Applicable Laws.
16. SPARE PARTS AVAILABILITY. Seller will maintain the capability to supply, and shall provide, spare parts (i.e., the entire Goods or portions of the Goods) and technical support for the Offerings during the term of this Agreement and for a period of fifteen (15) years thereafter (or longer period as may be required by Applicable Law) under the terms and conditions of this Agreement. Seller will give Buyer a last time buy option at the end of such period, and will notify Buyer in writing at least one hundred twenty (120) days prior to the conclusion of such period. Seller will notify Buyer in writing at least one hundred twenty (120) days prior to Seller’s withdrawal of any Goods or components thereof, and such withdrawal will not occur during the term of this Agreement or the fifteen (15) year period described in this Section, and will not affect Seller’s responsibilities under this Section related to spare parts availability or technical support.
17. INSPECTION; ACCEPTANCE; REJECTION. Offerings purchased hereunder are subject to inspection and approval at Buyer’s designated destination. Buyer shall have a reasonable amount of time to complete such inspection, but in no event less than thirty (30) days. Buyer reserves the right to reject and refuse acceptance of Offerings that are not in accordance with Buyer’s instructions, specifications, drawings, and data or Seller’s warranties (express and implied), or that are otherwise unsatisfactory to Buyer in its reasonable discretion, including after the initial inspection period. If any Offerings are rejected, at Buyer’s option, and without limiting any other rights or remedies available to Buyer, (a) Buyer may cancel the Purchase Order without charge or expense to Buyer, Seller shall reimburse Buyer for any amounts paid by Buyer for such rejected Offerings, and Seller shall immediately reimburse Buyer for any damages incurred by Buyer in connection with Seller’s provision of such defective Offerings, or (b) Seller will immediately replace all rejected Goods at no extra cost to Buyer, re-perform any rejected Services in a manner acceptable to Buyer at no extra cost to Buyer, and reimburse Buyer for any damages incurred by Buyer in connection with Seller’s provision of such defective Offerings. Payment for any Offerings hereunder will not be deemed an acceptance thereof, and no inspection or acceptance will be deemed a waiver of any rights or remedies. Acceptance of any Offerings that fail to comply with Seller’s warranties (including, without limitation, Offerings which fail to meet applicable specifications) shall not constitute an amendment to such warranties or specifications or a waiver of Buyer’s right to reject future Offerings that fail to comply with such warranties or specifications.
18. RECORDS. Seller shall maintain complete and accurate records relating to the provision of the Offerings under this Agreement, including records of the time spent and materials used by Seller in providing the Offerings, in such form as Buyer approves in writing. During the period in which Seller is providing Offerings to Buyer hereunder, and for a period of two (2) years thereafter, upon Buyer’s written request, Seller shall allow Buyer or Buyer’s representative to inspect and make copies of such records and interview Seller’s personnel in connection with the provision of the Offerings. Buyer may inspect Seller’s facilities and records, and that of Seller’s suppliers and any approved subcontractors, at any time from time to time, upon not less than twenty-four (24) hours prior notice (written, verbal or otherwise).
19. NO IDENTIFICATION AFTER BREACH. If Buyer wrongfully rejects or revokes acceptance of any Offering, fails to make any payment when due, or repudiates with respect to any Offering covered by this Agreement, Seller will have no right to identify any goods to the contract after it learns of the rejection, revocation, breach or repudiation.
20. PRODUCT RECALLS. Either Buyer or Seller, in consultation with the other, may initiate a product withdrawal, market withdrawal, stock recovery, removal, or recall (a “Recall”) with respect to any Goods. Seller will use its best efforts to remove all affected Goods from distribution channels and shall cooperate with Buyer in its efforts associated with any Recall. Seller will promptly notify Buyer of any request or order for a Recall of any Goods by any federal, provincial, state, or local authority or regulatory agency, and of any voluntary Recall initiated by Seller of any of the Goods, within twenty-four (24) hours. Seller will, in addition to any other remedies that may be available to Buyer, promptly reimburse Buyer for all costs, expenses (including attorneys’ fees), losses and liabilities incurred by Buyer and/or its affiliates in connection with any Recall.
21. INDEMNIFICATION. Seller shall indemnify, defend, and hold Buyer, its direct and indirect parent and subsidiary entities and other affiliates, and its and their respective directors, officers, employees, representatives, agents, direct and indirect customers and product users, and each of the foregoing’s respective successors and assigns (collectively, “Indemnitees”), harmless from and against any and all claims, demands, actions, proceedings, damages, losses, liabilities, costs, and expenses, of any kind whatsoever, including all attorneys’ fees, directly or indirectly, arising from or relating to any actual or alleged (a) defect in any Offerings, (b) failure to comply with specifications in the Purchase Order or with the express and implied warranties of Seller, or any of the terms of this Agreement, (c) Buyer’s enforcement of any provision of this Agreement; (d) act or omission of Seller, its affiliates or its or their respective directors, officers, employees, representatives, and/or agents related to the provision, sale or use of any Offerings, including, without limitation, any damage to or injury to persons on Buyer’s or any third party’s property (including property at a customer’s site), (d) violation by any Offerings, or in their provision, manufacture or sale, of any law, statute, ordinance or administrative order, rule or regulation, or (e) infringement by any Offering of any patent, trademark, or other trade designation, trade secret, copyright, or other intellectual property right (other than infringement caused solely by specifications provided by Buyer).
22. BUYER-FURNISHED PROPERTY; INTELLECTUAL PROPERTY OWNERSHIP. Seller will not disclose to any other party, or use, reproduce, or appropriate, any material, tooling, dies, drawing, designs, or other property or data furnished by Buyer (“Buyer-Furnished Property”). All Buyer-Furnished Property is being provided for use on an as-is basis, and Buyer makes no representations or warranties with respect thereto, whether express or implied. Title to Buyer-Furnished Property will remain with Buyer at all times. Buyer shall have no obligation to furnish any Buyer-Furnished Property, and Seller shall be solely responsible for obtaining and maintaining the tools and equipment necessary for the fulfillment of its obligations hereunder, including all repair and replacement costs associated therewith. Seller will bear the risk of loss or damage to all Buyer-Furnished Property unless such loss or damage is solely, directly and proximately caused by Buyer. All Buyer-Furnished Property will be returned to Buyer at Seller’s risk and expense upon termination or completion of this Agreement or upon Buyer’s demand, whichever occurs first, unless Buyer otherwise directs. All designs, sketches, patterns, dies, tools, equipment, special appliances, computer programs, plans, documents, interfaces, data, configurations, models, concepts, ideas, patents, trade secrets, and other intellectual property (“Works”) paid for directly or indirectly (including as part of the purchase price, whether or not specifically itemized) by Buyer shall be Buyer-Furnished Property and subject to the terms of this provision. Seller agrees, and shall cause its employees and subcontractors to agree, that with respect to any Work that may qualify as “work made for hire” as defined in 17 U.S.C. �101, such Work is a “work made for hire” for Buyer. To the extent that any of the Work does not constitute a “work made for hire,” Seller hereby irrevocably assigns, and shall cause its employees and subcontractors to irrevocably assign to Buyer, in each case without additional consideration, all right, title, and interest throughout the world in and to the Work, including all intellectual property rights therein. As to any Works purchased, furnished or used by Seller in its performance of its obligations under this Agreement which does not become Buyer-Furnished Property under the terms of this Section, Buyer has the option, at any time and from time to time, to purchase from Seller some or all of such Works, and upon the exercise of such option Buyer shall become the owner and entitled to possession of the same. The purchase price shall be limited to the lesser of the fair market value for such Works or the initial cost of such Works less any accumulated depreciation. Seller shall not sell or otherwise dispose of any Works without the prior written consent of Buyer. Seller will not acquire or claim any rights, title or interest in any intellectual property rights of Buyer, including copyrights, patents, patent disclosures, inventions (whether patentable or not), trade dress, trade names, logos, corporate names, domain names, trademarks, service marks, trade secrets, know-how, specifications, and other Confidential Information of Buyer. To the extent that any developments, discoveries, inventions, or improvements arise from this Agreement (“Developments”), Seller shall disclose all such Developments promptly to Buyer. To the extent that Seller has any ownership rights in the Developments, Seller shall immediately assign all such rights to Buyer. Seller shall furnish any reasonable assistance Buyer requests in order to file and prosecute any patent application or otherwise pursue or protect Buyer’s rights to the Work or the Developments. In addition, Seller shall assist Buyer in the enforcement of Buyer’s right in the Work and/or Developments.
23. INTELLECTUAL PROPERTY LICENSE. To the extent not Buyer-Furnished Property, Seller agrees to and hereby does grant to Buyer an irrevocable, perpetual, non-exclusive, fully paid up, fully transferable, sublicensable, royalty free license to make, have made, repair, have repaired, use and sell the Goods and any invention, improvement or discovery (whether or not patentable) that Seller conceives, develops or first actually reduces to practice in the course of performing the Purchase Order. Seller agrees to and hereby does grant to Buyer: (a) an irrevocable, perpetual, non-exclusive, fully paid up, fully transferable, sublicensable, royalty free license to reproduce, translate, publish, use and dispose of, and to authorize others to do so, any copyrighted or copyrightable material ordered as Offerings, or incorporated in or supplied as a supplement with any Offerings; and (b) the right to reproduce, use and disclose for any purpose, all or any part of the reports, drawings, blueprints, data and technical information delivered or specified to be delivered to Buyer. In addition, Seller hereby grants to Buyer a perpetual (including after the termination of this Agreement), irrevocable, non-exclusive, fully paid up, fully transferable, sublicensable, royalty free license to manufacture the Goods, and/or goods incorporating or based upon the Goods, in whole or in part, with or without modification, and/or to have the same manufactured by one or more other or additional suppliers.
24. SETOFF. Buyer may set off any amount due from Seller, whether or not under the Purchase Order or this Agreement, against any amount due Seller hereunder. Seller may not set off any amount due from Buyer, whether or not under this Agreement, against any amount due Buyer hereunder without Buyer’s prior written consent.
25. CONFIDENTIALITY. If the parties have entered into a non-disclosure and/or confidentiality agreement (the “NDA”), the terms of the NDA are incorporated herein by this reference and will control the disclosure of any confidential or proprietary information. If there is any conflict between the terms of the NDA and this Agreement, the terms of this Agreement will prevail to the extent of the inconsistency. If the NDA expires prior to the termination of this Agreement, the NDA is hereby deemed renewed and extended until the termination of this Agreement. If the parties have not entered into such an NDA, the parties agree that the remainder of this Section will apply. All non-public, confidential or proprietary information of, relating to, or held by Buyer (including, without limitation, information of or relating to Buyer or Buyer’s direct or indirect affiliates, customers, and suppliers, including without limitation specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates), disclosed by or on behalf of Buyer (whether disclosed orally, visually or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”) or otherwise made available to Seller, or developed by Seller for the benefit of Buyer hereunder, shall be deemed “Confidential Information,” is confidential, solely for the use of performing this Agreement, shall be protected to at least the same degree as Seller’s own confidential information (but in no event with less than a reasonable degree of care), and may not be disclosed or copied unless authorized by Buyer in writing. Seller agrees to not disclose the Confidential Information except as legally required (and then only to the minimum extent legally required), and except to Seller’s employees who are bound by obligations of confidentiality with respect to such Confidential Information at least as stringent as those set forth herein and who have a need to know such Confidential Information for the purpose of fulfilling Seller’s obligations under this Agreement. Seller shall be responsible for any breach of the confidentiality and non-use obligations set forth herein by such employees. Without limiting the foregoing, Seller may only use the Confidential Information in the performance of this Agreement, and may not use the Confidential Information for any other purpose. Seller shall not use, access, or permit the use of any of Buyer’s Confidential Information (whether or not such Confidential Information has been aggregated, anonymized, de-identified, or otherwise modified) for the purpose of training, fine-tuning, testing, improving, or otherwise developing any artificial intelligence or machine learning system, model, algorithm, or tool, including but not limited to generative AI, natural language processing models, neural networks, predictive analytics, or similar technologies (“AI Systems”). Seller shall not input, upload, submit, prompt with, or otherwise disclose any Confidential Information to any AI Systems, whether operated by Seller or any third party, except to the extent expressly approved in advance in writing by Buyer and subject to written safeguards reasonably acceptable to Buyer that ensure confidentiality, prohibit training or retention, and prevent use of the Confidential Information for any purpose other than the performance of this Agreement. Seller shall return to Buyer, or destroy, with such destruction certified in writing to Buyer, within five (5) days of the earlier of a request from Buyer or the termination of this Agreement, all Confidential Information, and all written materials, and copies thereof, including materials stored in electronic media, containing, incorporating, or otherwise based upon, in whole or in part, the Confidential Information. This provision shall survive any termination of this Agreement for any reason, and in the event of any breach or threatened breach of this provision, Buyer shall be entitled, in addition to any other remedies and damages, to injunctive relief without the necessity of paying bond and without being required to prove the existence, amount or insufficiency of damages.
26. USE OF ARTIFICIAL INTELLIGENCE. Except with the prior written consent of an authorized officer of Buyer, Seller shall not, and shall ensure that its affiliates, employees, contractors, agents, and any third parties acting on its behalf do not, utilize, incorporate, or rely on any AI Systems to generate or materially contribute to any deliverables or other work product included within the Offerings. Notwithstanding the foregoing, Seller may use AI Systems solely for internal purposes (such as research assistance, grammar correction, or drafting internal templates), provided that: (a) such use does not result in any AI-generated content being incorporated into the Offerings; (b) such use does not give rise to any third-party intellectual property claims or open-source obligations with respect to the Offerings or any Confidential Information; and (c) Seller complies with the restrictions set forth in Section 25. Seller represents and warrants that it has implemented commercially reasonable safeguards and internal policies to ensure compliance with this Section.
27. DATA OWNERSHIP; DATA SECURITY. All data, including personal information and user information, created, collected, received, accessed, used, or disclosed by or to Seller or its contractors or third parties in connection with this Agreement remains the sole property of Buyer, and shall be deemed to be Confidential Information hereunder. Seller represents that it is in and at all times will be in compliance with (i) all Applicable Laws relating to privacy, data protection and the creation, collection, receipt, access, use, storage, disposal, and disclosure of personal information and user information, (ii) all Applicable Laws relating to data loss, theft and breach of security notification obligations, (iii) all Applicable Laws and security standards, including without limitation the Payment Card Industry Data Security Standard, with respect to its acceptance, processing, storage and transmission of credit card information, and (iv) all privacy, data protection and collection, data storage, and confidentiality rules, policies, and procedures of Buyer communicated to Seller from time to time. If Seller creates, collects, receives, accesses, uses, stores, or disposes any personal data under this Agreement, Seller agrees to do so only to the extent necessary to perform its obligations for Buyer or as otherwise may be required by Applicable Law. Seller represents that it does not and shall not sell or rent any personal information and user information collected, received, accessed, or used by Seller or disclosed to Seller. Seller represents that it has and shall at all times have commercially reasonable physical, technical, organizational and administrative security measures and policies in place to protect all personal information and user information collected by Seller or on Seller’s behalf from and against unauthorized access, use and/or disclosure. Seller represents that at all times it (x) maintains commercially reasonable backup and data recovery, disaster recovery, and business continuity plans, procedures, and facilities; (y) acts in compliance therewith; and (z) tests such plans and procedures on a regular basis, and such plans and procedures have been proven effective upon such testing.
28. CYBER ATTACK. In the event that Seller or any of its personnel become aware of or suspect a data security breach, an unauthorized access, use, loss, theft, damage or acquisition of Buyer’s data, or any other event that compromises the security, confidentiality or integrity of Buyer’s data (“Incident”), Seller shall (a) promptly communicate the nature of the Incident to Buyer; (b) assist Buyer with mitigating the damages resulting from the Incident; and (c) allow Buyer to have sole control over the timing, content, and method of providing notification to the impacted individuals and governmental authorities, if applicable. In addition to any other remedies available to Buyer under this Agreement, in law or in equity, for any Incident resulting, in whole or in part, from the acts or omissions of Seller or its personnel, Seller shall: (i) take any corrective actions necessary to remedy the Incident; and (ii) reimburse Buyer for its costs and expenses relating to the Incident such as (1) Buyer’s costs incurred in notifying impacted individuals, governmental authorities, and credit bureaus, (2) Buyer’s attorneys’ fees and public relations’ fees incurred in response to the Incident; (3) Buyer’s costs of obtaining credit monitoring services and identity theft insurance for the benefit of the impacted individuals; (4) call center support to notify impacted individuals; (5) all fines, penalties or charges assessed by any governmental entity; and (6) forensic IT services and e-discovery services used by Buyer relating to the Incident, where (1)-(6) are deemed direct damages and are not subject to any caps on liability or exclusion of damages set forth elsewhere in this Agreement or in any other document or agreement (if any).
29. SOLICITATION OF PERSONNEL. For so long as there is any Purchase Order in effect between Buyer and Seller and for twelve (12) months thereafter, Seller agrees that it shall not solicit for employment any employee or contractor of Buyer. Seller agrees that the duration, scope, and geographical area of the restrictions contained in this Section are reasonable. Upon a determination that any term or provision of this Section is invalid, illegal, or unenforceable, the court may modify this Section to substitute the maximum duration, scope, or geographical area legally permissible under such circumstances to the greatest extent possible to effect the restrictions originally contemplated by the parties hereto.
30. INSURANCE. During the term of this Agreement and for two (2) years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect in amounts and types customary in Seller’s industry and satisfactory to Buyer. Buyer shall be named as an additional insured under Seller’s insurance policies, and such policies shall be primary and non-contributory in favor of Buyer, and shall include a waiver of subrogation in Buyer’s favor. All insurance policies must be underwritten by a company with a minimum A.M. Best Rating of A- VII. Certificates evidencing the required coverages must be furnished to Buyer prior to the commencement of any work and on an annual basis thereafter, and at any additional times upon Buyer’s request. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in any of Seller’s insurance policies. If Seller fails to maintain the insurance required herein, Buyer may, in its sole discretion, purchase such insurance on Seller’s behalf and charge back the cost thereof to Seller, with a reasonable markup.
31. BUYER’S EXCUSE FROM PERFORMANCE. Buyer shall be excused from performance under this Agreement if performance is rendered impracticable by any accident, breakdown, riot, war, delay, labor or transportation problem, act of God, or other causes or conditions, whether of like or different nature, that are beyond Buyer’s reasonable control. Under no circumstances will Seller be excused from performance under this Agreement nor will Seller be permitted to increase prices hereunder, including without limitation due to accident, breakdown, riot, war, delay, labor or transportation problems, acts of God, changes in market conditions, raw material shortages, increases in costs, tariffs, trade restrictions, or embargoes.
32. NOTICES. Any notice relating to this Agreement must be in writing and will be considered given within three (3) days after it is deposited, postage prepaid, with a registered mail service and addressed to the other party at the address given in this Agreement; or, if delivered by hand, when so delivered. Notices to Seller may be delivered by email to any email address used by an employee of Seller in communicating with Buyer, and will be deemed given when sent to such email address.
33. SUBCONTRACTING; ASSIGNMENT; DELEGATION. Seller may not subcontract the performance of any of its duties or obligations without Buyer’s prior written consent. In any event, Seller shall be responsible and liable for the acts and omissions of each subcontractor (including its employees) to the same extent as if such acts or omissions were by Seller or its employees, and shall be responsible for all fees and expenses payable to any subcontractor. Seller may not assign, whether voluntarily or involuntarily, by merger, consolidation, dissolution, direct or indirect change of control, or otherwise, this Agreement or any of Seller’s rights hereunder nor delegate any of Seller’s obligations hereunder without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section will be void. Buyer may assign this Agreement and any of Buyer’s rights hereunder and delegate any of Buyer’s obligations under this Agreement. If Buyer assigns this Agreement or delegates any obligations under this Agreement (whether in whole or in part), Seller shall, as relates to such part that was assigned or delegated, release Buyer from all liability under this Agreement relating thereto and hold the assignee solely responsible for performance of all such assigned or delegated obligations.
34. APPLICABLE LAW. The validity, construction, and enforcement of this Agreement is governed by and interpreted under the laws of the State of Wisconsin, including, without limitation, its provisions of the Uniform Commercial Code. The United Nations Convention on Contracts for the International Sales of Goods (CISG) does not apply to this Agreement. In the event of a dispute involving this Agreement, any legal proceeding must be heard and determined exclusively in the State or Federal courts located in the State of Wisconsin. Seller irrevocably waives any objection to venue, including on the ground of forum non conveniens, to bringing a legal action in Wisconsin, and agrees not to bring any legal action relating to this Agreement except within the State of Wisconsin. Service of process on Seller may be made through any form permissible for delivering a notice pursuant to Section 32. Seller shall pay Buyer any collection fees and all attorneys’ fees incurred by Buyer in enforcing this Agreement or defending against any claim for breach of this Agreement. Notwithstanding anything to the contrary, Buyer explicitly reserves its right to a jury trial, as well as it rights to all remedies available to it under Applicable Law, including, without limitation, all rights to indirect, incidental, consequential, punitive, exemplary, enhanced and special damages (including, without limitation, lost profits). Notwithstanding anything to the contrary, no limit or cap on Seller’s liability shall apply. Unless otherwise instructed by Buyer in writing, Seller shall continue delivery and performance pursuant to these Terms while any dispute relating to this Agreement or the Offerings is pending, and Seller shall not be permitted to withhold shipment or performance in connection with any dispute unless expressly authorized by a final, non-appealable judgment of a court of competent jurisdiction.
35. AMENDMENT; WAIVER. No amendment or modification of any term or condition will be valid or binding upon Buyer unless approved by Buyer in a writing hand-signed by Buyer. Unless Buyer expressly indicates otherwise in such hand-signed writing, such modification is effective only in that instance and only for the purpose for which it is made and is not to be construed as a modification on any future occasion or of any future order or agreement. Clerical and stenographic errors are subject to correction by Buyer. No waiver by Buyer of any of the terms of this Agreement is effective unless explicitly set forth in a writing signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
36. SEVERABILITY. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination will not affect the remainder of this Agreement, which will remain in full force and effect.
37. INDEPENDENT CONTRACTORS. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Seller at all times is and shall conduct itself as an independent contractor in the performance of the Services hereunder. Seller shall have no right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of Buyer, or any of Buyer’s parents, subsidiaries, affiliates, successors, or assigns. Seller shall be responsible for payment of all taxes, including, but not limited to, federal, state, and local taxes arising out of Seller’s activities under this Agreement, including, by way of illustration but not limitation, federal and state income tax, Social Security tax, unemployment insurance taxes, and any other taxes or business license fees as required by law or otherwise. Seller shall be solely responsible for paying its personnel’s entire compensation earned in connection with the Services, including, but not limited to, any and all related taxes, expenses, holidays, sick time, vacations, and benefits, and Seller shall indemnify and hold Buyer harmless against any claims by any of such personnel for wages or other employment benefits from Buyer with respect to the Services. At all times during this Agreement, Seller shall cause all of its personnel assigned to perform the Services to clearly identify themselves as personnel of Seller and not employees of Buyer. This will include any and all communications, oral, written, or electronic. Each of the personnel must present valid identification indicating that he or she is a guest, not an employee, of Buyer. It is the responsibility of Seller and the personnel of Seller to avoid any confusion regarding whether the personnel are employees of Buyer.
38. NO THIRD-PARTY BENEFICIARIES. Except as provided in Section 21 with respect to the Indemnitees, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
39. INTERPRETATION. Any rule of construction that requires any ambiguities to be interpreted against the drafter shall not be employed in the interpretation of this Agreement, or any document drafted or delivered in connection with the transactions contemplated by this Agreement. Captions and headings in this Agreement are for convenience only, and will be given no effect in the interpretation of this Agreement.
