Information for suppliers

APEX TOOL GROUP – EMEA PURCHASE ORDER TERMS AND CONDITIONS

As used herein, “Sel­ler” means sel­ler and its sub­si­dia­ries and affi­liates and “Buyer” means, as appli­cable, Apex Tool Group GmbH, Wel­ler Tools GmbH, Metro­nix Meßgeräte und Elek­tro­nik GmbH, Apex Tool Group SAS, Apex Tool Group Hungária Kft., Apex Tool S.r.l., Apex Tool Group B.V., Apex Tool Group AB, Apex Tool Swit­zer­land Sàrl, Apex Tool Group (UK Ope­ra­tions) Limi­ted and any other appli­cable sub­si­dia­ries and affi­liates ope­ra­ting in the Euro­pean Union from time to time. Sel­ler hereby agrees as fol­lows:

1. Gene­ral Terms

Only the terms and condi­tions set forth herein below apply to contracts based on orders pla­ced by Sel­ler or Buyer. Oppo­sing condi­tions and any condi­tions devia­ting from these terms and condi­tions of Buyer, in par­ti­cu­lar Sel­ler’s terms of deli­very, shall not apply unless expli­citly agreed to by Buyer in wri­ting or in text form. The terms and condi­tions set forth herein below shall also apply, if Buyer accepts Sel­ler’s deli­very without reser­va­tion although it has know­ledge of Sel­ler’s oppo­sing condi­tions or of condi­tions devia­ting from those of Buyer. This also applies, if Sel­ler states that Sel­ler only wishes to effect deli­very in accor­dance with Sel­ler’s condi­tions.

There are no other agree­ments, repre­sen­ta­tions or war­ran­ties other than those expressly pro­vi­ded for in the order or in these terms and condi­tions. Any addi­tio­nal and/or dif­ferent terms and condi­tions contai­ned in any docu­ment or wri­ting sent to Buyer at any time are hereby expressly objec­ted to and rejec­ted. Except as other­wise agreed to in wri­ting or in text form by Sel­ler and Buyer, and work com­men­ced by Sel­ler shall be exclu­si­vely gover­ned by the terms and condi­tions set forth herein.

2. Accep­tance of Pur­chase Order.

(a) The Terms and Condi­tions contai­ned herein shall govern the pur­chase of pro­ducts and ser­vices (col­lec­ti­vely, the “Pro­ducts”) pur­suant to a pur­chase order issued to Sel­ler by Buyer (“Order”), sub­ject to any addi­tio­nal terms and condi­tions appea­ring on the face of the Order. In the event there is a conflict bet­ween the terms and condi­tions appea­ring on the face of an Order and the terms and condi­tions herein, the terms and condi­tions on the face of an Order shall pre­vail.

(b) If the Order is construed as an offer by Buyer, Sel­ler’s accep­tance is strictly limi­ted to the terms of this offer. Any dif­ferent or addi­tio­nal terms in Sel­ler’s accep­tance are valid only upon express assent given by Buyer in wri­ting or in text form. If the Order is construed as Buyer’s accep­tance of Sel­ler’s offer, this accep­tance is expressly condi­tio­nal on Buyer’s addi­tio­nal assent in wri­ting or in text form to any terms addi­tio­nal to or dif­ferent from Sel­ler’s offer contai­ned herein. Accep­tance of the Pro­ducts deli­ve­red under the Order shall not consti­tute accep­tance of any terms addi­tio­nal to or dif­ferent from Sel­ler’s offer contai­ned herein or on the face of an Order unless Buyer’s addi­tio­nal assent has been pro­vi­ded in wri­ting or in text form.

3. Prices and Pay­ment Terms.

(a) Sel­ler’s price shall be as sta­ted in the Order. If the price is not sta­ted in the Order, the price will be Sel­ler’s lowest mar­ket price.

(b) The pur­chase price for each Pro­duct shall be all-inclu­sive and repre­sents the sole and exclu­sive consi­de­ra­tion to Sel­ler hereun­der for the Pro­duct, except for taxes that are cal­cu­la­ted directly on the pur­chase price pay­ments made by Buyer hereun­der and which Sel­ler is legally requi­red to col­lect and pay over to tax autho­ri­ties. The taxes for which Buyer is res­pon­sible shall include sales and use taxes, but shall exclude, without limi­ta­tion, Sel­ler’s fran­chise or busi­ness taxes, taxes based on Sel­ler’s income or gross receipts and taxes for which Buyer is exempt by law as shown by a valid tax exemp­tion cer­ti­fi­cate, when such a cer­ti­fi­cate is requi­red.

(c) Terms of pay­ment are net ninety (90) days, either after receipt of Sel­ler’s valid invoice or after receipt of the Pro­ducts, whi­che­ver is later. At Buyer’s option, all invoi­ced amounts shall be sub­ject to a two percent (2%) early pay­ment dis­count for all pay­ments remit­ted by Buyer within twenty (20) days of Buyer’s receipt of such invoice.

(d) Buyer may with­hold and apply any moneys payable by it under the Order to the pay­ment of any obli­ga­tions of Sel­ler to any sub­con­trac­tors or sup­pliers.

4. Title, Deli­very and Risk of Loss.

(a) Unless other­wise agreed by the par­ties, all Pro­ducts are to be ship­ped DDP (Des­ti­na­tion as sti­pu­la­ted by the Order) (Inco­terms 2010). Sel­ler will com­ply with all coun­try of ori­gin mar­king ins­truc­tions and all ins­truc­tions for exports to Buyer. Title to the Pro­ducts shall pass upon Buyer’s receipt at the des­ti­na­tion.

(b) All ship­ments must be made in accor­dance with ship­ping and rou­ting ins­truc­tions as spe­ci­fied by Buyer, but in any event, in com­pliance with all appli­cable govern­ment or freight com­pany regu­la­tions and Sel­ler shall assume full res­pon­si­bi­lity for fai­lure to com­ply with such ins­truc­tions, inclu­ding lia­bi­lity for a release of hazar­dous mate­rials into the envi­ron­ment prior to Buyer’s receipt of Pro­ducts. Sel­ler shall be held liable for any loss or damage prior to pas­sage of title to Buyer.

(c) Each deli­very of Pro­ducts to Buyer shall include a packing list, which contains at least the fol­lo­wing items: i) Order num­ber; ii) Sel­ler’s part num­ber; iii) Buyer’s part num­ber; iv) quan­tity ship­ped; and v) date of ship­ment.

(d) Sel­ler shall give Buyer writ­ten notice promptly upon deter­mi­ning that any or all Pro­ducts under an Order will not arrive by the requi­red deli­very date and will take all rea­so­nable steps at Sel­ler’s own cost to expe­dite deli­very. If only a por­tion of the Pro­ducts is avai­lable for ship­ment to meet the requi­red deli­very date, Sel­ler shall ship the avai­lable Pro­ducts unless direc­ted by Buyer to res­che­dule ship­ment.

(e) If Sel­ler and Buyer have agreed that time is of the essence and Sel­ler fails to deli­ver on time, Buyer may pur­chase repla­ce­ment pro­ducts elsew­here and Sel­ler will be liable for costs and damages that Buyer incurs.

(f) Deli­very dates and deli­very per­iods as set forth in the Order are bin­ding. Com­pliance with the deli­very date or deli­very per­iod is deter­mi­ned by the date of receipt of the Pro­ducts by Buyer or at any other loca­tion agreed bet­ween Buyer and Sel­ler in wri­ting or in text form.
If deli­very of the Pro­ducts is late for rea­sons such as mobi­li­za­tion, war, inter­ac­tion, strike, lockout or the occur­rence of other unfo­re­seeable, simi­larly serious impe­di­ments as regards com­pliance with the deli­very per­iod and if such impe­di­ments are beyond Sel­ler’s control, the deli­very per­iod shall be exten­ded appro­pria­tely. The Sel­ler will imme­dia­tely inform Buyer on any such events.

(g) In case of late deli­very, Buyer may – pro­vi­ded that Buyer can cre­di­bly show that it has incur­red damage as a result – demand com­pen­sa­tion for each com­plete week of delay in an amount of 0.3% per week of the price of that part of deli­very which could not be put to per­ti­nent use due to the delay but not excee­ding 3% of the price the­reof. Buyer’s fur­ther rights on account of late deli­very shall remain unaf­fec­ted.
If Buyer and Sel­ler agree on a contrac­tual penalty on top of this lump-sum, Buyer’s right to rescind the contract and/or assert fur­ther claims shall also remain unaf­fec­ted. Buyer may demand the contrac­tual penalty up to the time of the last pay­ment, even if it accep­ted the deli­very or ser­vice per­for­med by Sel­ler without any spe­cial reser­va­tion.

(h) If it becomes appa­rent that Sel­ler will be unable to meet the deli­very dates, Sel­ler shall contact Buyer without delay. The rights to which Buyer is entit­led on account of late deli­very under the terms of the Order, these Terms and Condi­tions or by sta­tute shall not be res­tric­ted even if Sel­ler contacts Buyer in accor­dance with this afo­re­men­tio­ned obli­ga­tion.

(i) Buyer reserves the right to sus­pend ship­ment by Sel­ler of all or part of the Order in the event of strikes, lockouts, or other labor dis­tur­bances, or other contin­gen­cies beyond Buyer’s control.

(k) Buyer is a SLVS wai­ver cus­to­mer (SLVS-Ver­zichts­kunde) and the trans­port risk is assu­med by and insu­red by Sel­ler.

5. Ins­pec­tion.

As soon as any defects in the deli­very of mate­rial, work­man­ship and Pro­ducts are esta­bli­shed in accor­dance with the cir­cum­stances pre­vai­ling during the nor­mal course of busi­ness, Buyer shall notify Sel­ler the­reof imme­dia­tely in wri­ting or in text form, unless other­wise agreed, nota­bly in qua­lity assu­rance agree­ments in which Buyer is relea­sed from its obli­ga­tion to exa­mine the goods and give noti­fi­ca­tion of defects as pro­vi­ded for in Sect. 377 of the Ger­man Com­mer­cial Code (HGB). Noti­fi­ca­tion of defects is dee­med to be in time, if it is recei­ved by Sel­ler within a per­iod of five wor­king days after Buyer has gai­ned know­ledge of the res­pec­tive defect. To this extent, Sel­ler waives the defense of delayed noti­fi­ca­tion of defects. Buyer may require Sel­ler to repair, replace or reim­burse the pur­chase price of rejec­ted mate­rials or Buyer may accept any Pro­ducts and, upon dis­co­very of non­con­for­mance, may reject or keep any such Pro­ducts not so confor­ming. Cost of repair, repla­ce­ment, ins­pec­tion, trans­por­ta­tion, repa­cka­ging and/or re-ins­pec­tion by Buyer shall be at Sel­ler’s expense. Buyer’s accep­tance of Pro­ducts shall not be dee­med to dimi­nish Buyer’s rights or be final or bin­ding on Buyer if latent defects, fraud or mis­re­pre­sen­ta­tion on the part of Sel­ler exists.

Buyer may elect to have ins­pec­tion and tes­ting made on the pre­mises of Sel­ler or Sel­ler’s lower-tier sub­con­trac­tors. In such event, Sel­ler shall fur­nish without addi­tio­nal charge all rea­so­nable faci­li­ties, infor­ma­tion and assis­tance neces­sary for the safe and conve­nient ins­pec­tion and test requi­red by the ins­pec­tors in the per­for­mance of their duty.

6. War­ranty.

(a) Sel­ler hereby war­rants to Buyer that, for a per­iod of three (3) years fol­lo­wing Buyer’s taking deli­very of the Pro­ducts hereun­der (the “War­ranty Per­iod”), such Pro­duct shall: i) be fit for its inten­ded pur­pose and be of mer­chan­table qua­lity; ii) be free from defects in mate­rials, work­man­ship, and design; iii) conform strictly to the per­for­mance, func­tio­na­lity and other spe­ci­fi­ca­tions and des­crip­tions set forth in Sel­ler’s cata­logs, pro­duct bro­chures, or other repre­sen­ta­tions, depic­tions, samples or models; and iv) conform strictly to all spe­ci­fi­ca­tions, dra­wings and des­crip­tions refe­ren­ced or set forth in the Order (col­lec­ti­vely, the “Per­for­mance War­ranty”).

(b) The Expiry of the Per­for­mance War­ranty shall be sus­pen­ded with res­pect to any claim made by Buyer prior to such ter­mi­na­tion or expi­ra­tion.

(c) Sel­ler agrees that Buyer may assign any claims against Sel­ler under such Per­for­mance War­ranty against Sel­ler to its cus­to­mers so that Buyer’s cus­to­mers may enforce such Per­for­mance War­ranty against Sel­ler on, in and for cus­to­mer’s behalf, name or bene­fit.

(d) During the War­ranty Per­iod, Sel­ler shall, at no addi­tio­nal cost to Buyer, repair or replace at Buyer’s option any Pro­duct that fails to conform to its Per­for­mance War­ranty in any res­pect what­soe­ver (each, a “Defec­tive Pro­duct”) within a rea­so­nable time set by Buyer.

If Buyer’s option is to replace such Pro­duct, the repla­ce­ment Pro­duct must conform to the Per­for­mance War­ranty in all res­pects (“Confor­ming Pro­duct(s)”). Repla­ce­ment Pro­ducts must be new pro­duct if the Defec­tive Pro­duct was sup­po­sed to be new pro­duct; no repai­red or rema­nu­fac­tu­red pro­duct will be accep­ted. Sel­ler shall replace, at Buyer’s option, each Defec­tive Pro­duct and re-deli­ver a Confor­ming Pro­duct to Buyer as soon as pos­sible, and in all events within a rea­so­nable per­iod of time set by Buyer after notice that a Pro­duct is a Defec­tive Pro­duct.

All return ship­ments of Defec­tive Pro­ducts to Sel­ler shall be at Sel­ler’s sole cost, risk, and expense. Sel­ler shall bear all ship­ping costs for war­ranty returns and repla­ce­ments. Sel­ler shall bear all rea­so­nable direct and indi­rect costs and expenses incur­red by Buyer to replace a Defec­tive Pro­duct with a Confor­ming Pro­duct, inclu­ding, but not limi­ted to, labor and tra­vel expenses. Buyer has the right to return Pro­duct on a per occur­rence basis. No mini­mum quan­tity shall be requi­red for returns.

(e) If it is obvious that the defect can­not be reme­died within a rea­so­nable per­iod of time either by repair or repla­ce­ment, Buyer has the right to reduce the pur­chase price or to rescind the contract with imme­diate effect. In the lat­ter case, Buyer shall be entit­led to an imme­diate and full refund of the pur­chase price paid to Sel­ler for such Defec­tive Pro­duct against retur­ning the Defec­tive Pro­duct. In any case, Buyer has the right to reduce the pur­chase price or to rescind the contract after expi­ra­tion to no avail of a rea­so­nable time set by Buyer. If Buyer elects to rescind the contract, nothing herein shall limit all addi­tio­nal rights and reme­dies avai­lable to it under law or excuse the Sel­ler from any ancil­lary obli­ga­tions set forth herein.
No per­iod of rea­so­nable time has either to be set by Buyer, if the Sel­ler has seriously and defi­ni­ti­vely refu­sed repair or repla­ce­ment, if such repair or repla­ce­ment is abor­tive or the set­ting of a date for repair or repla­ce­ment is not rea­so­na­bly accep­table to Buyer. Any repair or repla­ce­ment is dee­med to be abor­tive after the second unsuc­cess­ful attempt, unless some­thing can be deri­ved from the nature of the pro­duct or the defect or the conduct of the Sel­ler.
Nor does a rea­so­nable time for repair or repla­ce­ment have to be set if, on account of a defect clai­med by a consu­mer which defect already exis­ted before the Pro­duct was deli­ve­red to Buyer, Buyer had to take the Pro­duct back as a result of the defec­tive nature either from Buyer’s cus­to­mer in the deli­very chain or directly from the consu­mer, or if the consu­mer redu­ced the pur­chase price.
Buyer’s right to claim damages remains unaf­fec­ted.

(f) Sel­ler shall be res­pon­sible for all direct, indi­rect and conse­quen­tial damages incur­red by Buyer resul­ting from the pro­vi­sion of a Defec­tive Pro­duct or from the late deli­very of a Pro­duct.

(g) After the end of the War­ranty Per­iod, Sel­ler shall conti­nue to offer Pro­duct sup­port to repair and/or pro­vide ser­vice parts for a per­iod of ten (10) years begin­ning with the date the Pro­duct is dis­con­ti­nued or no lon­ger offe­red for sale by Sel­ler. In the event that Sel­ler can­not, or chooses not to, offer such Pro­duct sup­port, then Sel­ler shall pro­vide one (1) year’s notice before dis­con­ti­nuing such Pro­duct sup­port. Fur­ther­more, Sel­ler shall pro­vide all of the neces­sary tech­ni­cal dra­wings and docu­men­ta­tion, as well as a royalty-free, non-revo­cable license to all appli­cable intel­lec­tual pro­perty requi­red for the conti­nued repair or manu­fac­tu­ring of Pro­ducts by Buyer or Buyer’s desi­gnee.

7. Com­pliance with Laws.

(a) Sel­ler repre­sents, war­rants and cove­nants that all of the Pro­ducts, mer­chan­dise, and mate­rials deli­ve­red and/or ser­vices ren­de­red hereun­der will be, and will have been pro­du­ced and/or pro­vi­ded, in com­pliance with all appli­cable laws, rules, regu­la­tions, orders, trea­ties and other requi­re­ments of res­pec­tive Euro­pean Union and/or Ger­man fede­ral, natio­nal, state, pro­vin­cial and local/muni­ci­pal govern­ments and agen­cies the­reof, and that Sel­ler and Sel­ler’s busi­ness do and will com­ply with all appli­cable laws, rules, regu­la­tions, orders, trea­ties and other requi­re­ments of Euro­pean Union and/or Ger­man fede­ral, natio­nal, state, pro­vin­cial and local/muni­ci­pal govern­ments and agen­cies the­reof. Where appli­cable, Sel­ler hereby agrees to com­ply with the reco­gni­zed Rules of Tech­no­logy and, in par­ti­cu­lar, with the Spe­ci­fi­ca­tions and Regu­la­tions pres­cri­bed by the govern­ment, super­vi­sory autho­ri­ties, pro­fes­sion asso­cia­tions and the VDE (Asso­cia­tion of Ger­man Elec­tro­tech­ni­cal Engi­neers) with regard to construc­tion, exigent pre­ven­tion and envi­ron­men­tal pro­tec­tion as well as with the ATEX Direc­tive.

(b) Sel­ler shall, in the per­for­mance of an Order, com­ply with all appli­cable laws and regu­la­tions in effect on the date the Order is issued and as such may be amen­ded from time to time. All sales of Pro­ducts must be in confor­mance with Euro­pean Union, Ger­man, and other appli­cable export control laws, U.S. Foreign Assets Control and the U.S. Foreign Cor­rupt Prac­tices Act (“FCPA”) laws and regu­la­tions and simi­lar anti-cor­rup­tion laws and regu­la­tions that may be in effect in the coun­tries of export and import.

(c) Sel­ler ack­now­ledges that it is fami­liar with the FCPA and its pro­hi­bi­tions regar­ding the pay­ment or giving of any­thing of value either directly or indi­rectly, to an offi­cial of a foreign govern­ment or poli­ti­cal party for the pur­pose of influen­cing an act or deci­sion in their offi­cial capa­city or indu­cing the offi­cial to use their or their par­ty’s influence with that govern­ment, to obtain or retain busi­ness invol­ving the goods. Sel­ler agrees that it can­not coope­rate with or cause Pro­ducts to be deli­ve­red to any des­ti­na­tion or entity that is res­tric­ted by U.S., Euro­pean Union or Ger­man law. Fur­ther, Sel­ler reco­gnizes that Buyer can­not coope­rate with, agree to, or com­ply with any terms or requests, inclu­ding docu­men­tary requests, which are pro­hi­bi­ted or are pena­li­zed under U.S., Euro­pean Union or Ger­man Anti-boy­cott laws or regu­la­tions.

(d) Sel­ler repre­sents, war­rants and cove­nants that nei­ther it nor any of its owners or cus­to­mers are or will be on any of the pro­hi­bi­ted par­ties lists main­tai­ned by various agen­cies of the U.S. govern­ment or their Euro­pean Union coun­ter­parts, inclu­ding, without limi­ta­tion, the denied per­sons list, the unve­ri­fied list, the entity list, the debar­red list or the spe­cially desi­gna­ted natio­nals list (inclu­ding, without limi­ta­tion, those per­sons and enti­ties lis­ted pur­suant to the dia­mond tra­ding, nar­co­tics traf­fi­cking, non­pro­li­fe­ra­tion and ter­ro­rist sanc­tions pro­grams admi­nis­te­red by the Office of Foreign Assets Control of the U.S. Depart­ment of the Trea­sury).

(e) If any of the Pro­ducts are impor­ted into any other coun­try, Sel­ler will be res­pon­sible for all legal, regu­la­tory and admi­nis­tra­tive requi­re­ments asso­cia­ted with any impor­ta­tion and the pay­ment of all asso­cia­ted duties, taxes and fees. Upon Buyer’s request, Sel­ler shall pro­vide Buyer with an appro­priate cer­ti­fi­ca­tion sta­ting the coun­try of ori­gin for Pro­ducts, suf­fi­cient to satisfy the requi­re­ments of: i) the cus­toms autho­ri­ties of the coun­try of receipt; and ii) any appli­cable export licen­sing regu­la­tions.

(f) Sel­ler shall, at its sole cost, secure and main­tain all neces­sary licenses, per­mits, autho­ri­za­tions or other appro­vals requi­red for the ope­ra­tion of Sel­ler’s busi­ness or any pro­perty used the­rein, or as neces­sary for Sel­ler’s per­for­mance hereun­der. Sel­ler shall imme­dia­tely notify Buyer in the event that Sel­ler is not in com­pliance with any pro­vi­sion of this Sec­tion.

(g) If Sel­ler is a Com­pany that engages in the busi­ness of either manu­fac­tu­ring or expor­ting defense articles or fur­ni­shing defense ser­vices, then Sel­ler hereby cer­ti­fies that it has regis­te­red with the U.S. Depart­ment of State Direc­to­rate of Defense Trade Controls and/or the appli­cable Euro­pean Union or Ger­man agency and unders­tands its obli­ga­tion to com­ply with U.S Inter­na­tio­nal Traf­fic in Arms Regu­la­tions (“ITAR”), the Export Admi­nis­tra­tion Regu­la­tions (“EAR”) and their appli­cable Euro­pean Union and Ger­man coun­ter­parts. Sel­ler shall control the dis­clo­sure of and access to tech­ni­cal data infor­ma­tion and other items recei­ved under outs­tan­ding Orders in accor­dance with U.S., Euro­pean Union and Ger­man export control laws and regu­la­tions, inclu­ding but not limi­ted to the ITAR. Sel­ler agrees that no tech­ni­cal data, infor­ma­tion or other items pro­vi­ded by the Buyer in connec­tion with an Order shall be pro­vi­ded to any foreign natio­nal or to a foreign entity, inclu­ding without limi­ta­tion, a foreign sub­si­diary of Sel­ler, without the express writ­ten autho­ri­za­tion of Buyer and the Sel­ler’s obtai­ning the appro­priate export license, tech­ni­cal assis­tance, agree­ment or other requi­site docu­men­ta­tion for ITAR-control­led tech­ni­cal data or items. Sel­ler agrees to notify Buyer if Sel­ler is lis­ted on the Denied Par­ties List publi­shed by the U.S. Depart­ment of Com­merce, or if Sel­ler’s export pri­vi­leges are other­wise denied, sus­pen­ded, or revo­ked in whole or in part. Sel­ler shall indem­nify Buyer for all lia­bi­li­ties penal­ties, losses, damages, costs or expenses that may be impo­sed on or incur­red by Buyer in connec­tion with any vio­la­tion of import or export laws or regu­la­tions by Sel­ler.

(h) If any of the Pro­ducts are pur­cha­sed for incor­po­ra­tion into pro­ducts sold under a govern­ment contract or sub­con­tract, the terms requi­red to be inser­ted by that contract or sub­con­tract shall be dee­med to apply to the appli­cable Order. All rating or cer­ti­fi­ca­tion requi­re­ments spe­ci­fied in such govern­ment contract or sub­con­tract or of which Sel­ler has know­ledge shall be com­plied with. Sel­ler agrees to fur­nish Buyer a cer­ti­fi­cate of com­pliance with any such laws and cer­ti­fi­ca­tion requi­re­ments in such form as may be reques­ted by Buyer. If Sel­ler is a sub­con­trac­tor to Buyer on a U.S. govern­ment contract or sub­con­tract, the par­ties agree that, to the extent appli­cable: (1) they will com­ply with the fol­lo­wing, which are incor­po­ra­ted herein by refe­rence: 41 CFR 60-1.4(a), Exe­cu­tive Order 13496 (29 CFR Part 471, Appen­dix A to Sub­part A), rela­ting to the notice of employee rights under fede­ral labor laws, 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a); and (2) they shall abide by the requi­re­ments of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regu­la­tions, res­pec­ti­vely, pro­hi­bit dis­cri­mi­na­tion against qua­li­fied pro­tec­ted vete­rans and qua­li­fied indi­vi­duals on the basis of disa­bi­lity and require affir­ma­tive action by cove­red prime contrac­tors and sub­con­trac­tors to employ and advance in employ­ment qua­li­fied pro­tec­ted vete­rans and qua­li­fied indi­vi­duals with disa­bi­li­ties. If Sel­ler is a sub­con­trac­tor on a Cana­dian govern­ment contract or sub­con­tract, it shall com­ply with any equi­va­lent appli­cable Cana­dian fede­ral, natio­nal, state, pro­vin­cial or muni­ci­pal orders and regu­la­tions, all of which are incor­po­ra­ted herein by refe­rence.

(i) Sel­ler is and remains solely res­pon­sible for the full com­pliance of deli­ve­red Pro­ducts or parts of Pro­ducts with any appli­cable rules and regu­la­tions (“Legis­la­tion”) on res­tric­tion of hazar­dous sub­stances (“RoHS”) such as, without limi­ta­tion, the RoHS Recast Direc­tive 2011/65/EU (“RoHS-2”) as of 21 July 2011, and all fur­ther releases as well as all natio­nal or local regu­la­tions issued in exe­cu­tion of RoHS-2 or any equi­va­lent appli­cable U.S. or Cana­dian or Euro­pean Union fede­ral, pro­vin­cial or muni­ci­pal laws, rules, regu­la­tions, orders, trea­ties and other requi­re­ments. All deli­ve­red Pro­ducts or parts of Pro­ducts must be sui­table and fit for RoHS-2 com­pliant pro­duc­tion and sale. Sel­ler will com­plete and sign Buyers stan­dard Decla­ra­tion of RoHS-2 Com­pliance at the part num­ber level, use appro­priate sys­tems and pro­cesses to ensure the accu­racy of these deter­mi­na­tions and main­tain appro­priate records to allow tra­cea­bi­lity of all Pro­ducts or parts of Pro­ducts.
Sel­ler is and remains solely res­pon­sible for the full com­pliance of deli­ve­red Pro­ducts or parts of Pro­ducts with the Admi­nis­tra­tive Mea­sures on the Control of Pol­lu­tion Cau­sed by Elec­tro­nic Infor­ma­tion Pro­ducts as of 28 February 2006, and Ger­man fede­ral, pro­vin­cial or muni­ci­pal laws, rules, regu­la­tions, orders, trea­ties and other requi­re­ments in par­ti­cu­lar but not limi­ted to the Ger­man Regu­la­tion on the res­tric­ting of the use of hazar­dous sub­stances in elec­tri­cal and elec­tro­nic equip­ment (Elek­troS­toffV) as amen­ded from time to time and to ensure that the goods deli­ve­red do not contain any of the pro­hi­bi­ted sub­stances pur­suant to § 3 Elek­troS­toffV as amen­ded from time to time. If Pro­ducts deli­ve­red should contain even minor quan­tity of the fol­lo­wing pro­hi­bi­ted sub­stances: lead, mer­cury, cad­mium or hexa­valent chrome, Sel­ler is obli­ged to notify Buyer hereof without delay in order to enable Buyer to com­ply with the requi­re­ments of the Elek­troS­toffV as amen­ded from time to time. All deli­ve­red Pro­ducts or parts of Pro­ducts must be sui­table and fit for RoHS com­pliant pro­duc­tion and sale. Sel­ler will com­plete and sign Buyer’s stan­dard Decla­ra­tion of RoHS Com­pliance at the part num­ber level, use appro­priate sys­tems and pro­cesses to ensure the accu­racy of these deter­mi­na­tions and main­tain appro­priate records to allow tra­cea­bi­lity of all Pro­ducts or parts of Pro­ducts. Inso­far as Pro­ducts or parts of Pro­ducts are not sup­plied in accor­dance with the afo­re­men­tio­ned requi­re­ments, Buyer reserves the right to can­cel blan­ket or single Orders. Sel­ler under­takes to duly and imme­dia­tely inform Buyer of any changes affec­ting RoHS com­pliance. In case of can­cel­la­tion of blan­ket or single Orders or pro­ven vio­la­tions of natio­nal or inter­na­tio­nal RoHS com­pliance by the Sel­ler, Sel­ler under­takes to indem­nify and hold Buyer harm­less from any claim, lia­bi­lity, loss, damage, judg­ment and exter­nal res­pon­si­bi­lity, irres­pec­tive of their juris­dic­tion and/or legal ground, and to bear any and all harm, loss or damage ari­sing to Buyer’s disad­van­tage.

(k) To the extent requi­red by appli­cable law, Sel­ler shall be res­pon­sible for the col­lec­tion, treat­ment, reco­very or dis­po­sal of: (i) the Pro­ducts or any part the­reof when they are dee­med by law to be ‘was­te’; and (ii) any items for which the Pro­ducts or any part the­reof are repla­ce­ments. If Sel­ler is requi­red by appli­cable law, inclu­ding, without limi­ta­tion, waste elec­tri­cal and elec­tro­nic equip­ment Legis­la­tions, Euro­pean Direc­tive 2012/19/EU (“WEEE”) and rela­ted Legis­la­tions in EU Mem­ber States, to dis­pose of ‘was­te’ Pro­ducts or any part the­reof, Sel­ler shall dis­pose of such Pro­ducts enti­rely at its own cost (inclu­ding all hand­ling and trans­por­ta­tion costs).

(l) Sel­ler is and remains solely res­pon­sible for the full com­pliance of deli­ve­red Pro­ducts, parts of Pro­ducts or sub­stances with the requi­re­ments of Regu­la­tion (EC) No. 1907/2006 as of 7 July 2017 as amen­ded or varied and all fur­ther releases as well as any natio­nal regu­la­tions issued in exe­cu­tion of this regu­la­tion (“REACH”). Sel­ler gua­ran­tees that all obli­ga­tions under REACH, in par­ti­cu­lar all infor­ma­tion requi­re­ments vis-à-vis Buyer, have been ful­filled. This includes in par­ti­cu­lar the pro­vi­sion of a com­pre­hen­sive safety data sheet in accor­dance with REACH. Inso­far as Pro­ducts, parts of Pro­ducts or sub­stances are not sup­plied in accor­dance with the afo­re­men­tio­ned requi­re­ments, Buyer reserves the right to can­cel any Order. Sel­ler under­takes to duly and imme­dia­tely inform Buyer of any changes affec­ting REACH com­pliance. In case of can­cel­la­tion of blan­ket or single Orders or pro­ven vio­la­tions of natio­nal or inter­na­tio­nal REACH com­pliance regu­la­tions by Sel­ler, Sel­ler under­takes to indem­nify and hold Buyer harm­less from any claim, lia­bi­lity, loss, damage, judg­ment and exter­nal res­pon­si­bi­lity, irres­pec­tive of their juris­dic­tion and/or legal ground, and to bear any and all harm, loss or damage ari­sing to Buyer’s disad­van­tage.

(m) Sel­ler ack­now­ledges that Buyer is requi­red to com­ply with Sec­tion 1502 of the Uni­ted States Dodd-Frank Wall Street Reform and Consu­mer Pro­tec­tion Act (“the Dodd-Frank Act”) and inter alia must file dis­clo­sures and reports with the Uni­ted States Secu­ri­ties and Exchange Com­mis­sion rela­ted to the use of tin, tan­ta­lum, tungs­ten and gold (“Conflict Mine­rals”). Sel­ler repre­sents and war­rants that it will source, and track the chain of cus­tody of, all Conflict Mine­rals contai­ned in any pro­ducts or mate­rials pro­vi­ded by Sel­ler to Buyer in accor­dance with the OECD Due Dili­gence Gui­dance for Res­pon­sible Sup­ply Chains of Mine­rals from Conflict-Affec­ted and High-Risk Areas (or such other inter­na­tio­nally reco­gni­zed due dili­gence stan­dard as Buyer and Sel­ler may jointly agree upon). At Buyer’s request (which may be as fre­quently as quar­terly at Buyer’s dis­cre­tion), Sel­ler must exe­cute and deli­ver to Buyer decla­ra­tions in the form of the EICC-GESI Conflict Mine­rals Repor­ting Tem­plate as adop­ted by EICC-GESI from time to time, or (at Buyer’s dis­cre­tion) in any other form that Buyer rea­so­na­bly requests. Sel­ler agrees and repre­sents that all pro­ducts and mate­rials pro­vi­ded by Sel­ler to Buyer after Decem­ber 31, 2014 shall be “Conflict Free” (as defi­ned in the Dodd-Frank Act) and at Buyer’s request from time to time Sel­ler shall exe­cute and deli­ver to Buyer a writ­ten decla­ra­tion to the same effect.

(n) Sel­ler is and remains solely res­pon­sible for the full com­pliance of deli­ve­red Pro­ducts, parts of Pro­ducts or sub­stances with the requi­re­ments of the State of Cali­for­nia’s Safe Drin­king Water and Toxic Enfor­ce­ment Act of 1986 (Pro­po­si­tion 65). Sel­ler shall pro­vide noti­fi­ca­tion to Buyer of the pre­sence of Pro­po­si­tion 65 che­mi­cals in Sel­ler’s pro­ducts at the time of deli­very, and shall notify Buyer of any changes in the pre­sence of Pro­po­si­tion 65 che­mi­cals as soon as such changes are known. Sel­lers noti­fi­ca­tion to Buyer shall be suf­fi­cient if made in wri­ting by elec­tro­nic mail to ATGPC@​Ape​xtoo​lgro​up.​com.

8. Indem­ni­fi­ca­tion.

(a) SEL­LER SHALL INDEM­NIFY, HOLD HARM­LESS AND, AT BUYER’S REQUEST, DEFEND BUYER, ITS OFFI­CERS, DIREC­TORS, CUS­TO­MERS, AGENTS AND EMPLOYEES, AGAINST ALL CLAIMS, SUITS, LIA­BI­LI­TIES, DAMAGES, LOSSES AND EXPENSES, INCLU­DING ATTOR­NEYS’ FEES AND COSTS OF SUIT ARI­SING OUT OF OR IN ANY WAY CONNEC­TED WITH THE PRO­DUCTS PRO­VI­DED UNDER THIS AGREE­MENT, INCLU­DING, WITHOUT LIMI­TA­TION: (I) BREACH OR NON-FUL­FILLMENT OF ANY REPRE­SEN­TA­TION, WAR­RANTY OR COVE­NANT UNDER/REPRE­SEN­TA­TION OR WAR­RANTY SET FORTH IN SEC­TION SET FORTH HEREIN BY SEL­LER; (II) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMIS­SION OF SEL­LER (INCLU­DING ANY RECK­LESS OR WILL­FUL MIS­CON­DUCT) IN CONNEC­TION WITH THE PER­FOR­MANCE OF ITS OBLI­GA­TIONS HEREUN­DER; (III) ANY BODILY INJURY, DEATH OF ANY PER­SON OR DAMAGE TO REAL OR TAN­GIBLE PER­SO­NAL PRO­PERTY CAU­SED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMIS­SIONS OF SEL­LER; (IV) ANY FAI­LURE BY SEL­LER TO COM­PLY WITH ANY APPLI­CABLE FEDE­RAL, STATE OR LOCAL LAWS, REGU­LA­TIONS OR CODES IN THE PER­FOR­MANCE OF ITS OBLI­GA­TIONS UNDER THIS AGREE­MENT; AND (V) ANY CLAIM BY A THIRD PARTY AGAINST BUYER ALLE­GING THAT THE PRO­DUCTS OR SER­VICES PRO­VI­DED UNDER THIS AGREE­MENT, INFRINGE A PATENT, COPY­RIGHT, TRA­DE­MARK, TRADE SECRET OR OTHER PRO­PRIE­TARY RIGHT OF A THIRD PARTY, WHE­THER SUCH ARE PRO­VI­DED ALONE OR IN COM­BI­NA­TION WITH OTHER PRO­DUCTS, SOFT­WARE OR PRO­CESSES. SEL­LER SHALL NOT SET­TLE ANY SUCH SUIT OR CLAIM WITHOUT BUYER’S PRIOR WRIT­TEN APPRO­VAL. SEL­LER AGREES TO PAY AND REIM­BURSE ALL COSTS THAT MAY BE INCUR­RED BY BUYER IN ENFOR­CING THIS INDEM­NITY, INCLU­DING ATTOR­NEY’S FEES.

(b) Without limi­ting the gene­ra­lity of sec­tion (a) above, if the use by Buyer of any Pro­duct is enjoi­ned (the “Infrin­ging Pro­duct”), Sel­ler shall at its expense use its best efforts to pro­cure the right for Buyer to conti­nue using the Infrin­ging Pro­duct. If Sel­ler is unable to do so, Sel­ler shall at its expense: (i) replace the Infrin­ging Pro­duct with a non-infrin­ging pro­duct; (ii) modify the Infrin­ging Pro­duct to be non-infrin­ging; or (iii) if unable to replace or modify the Infrin­ging Pro­duct, refund in full all amounts paid by Buyer for the Infrin­ging Pro­duct.

(c) Without limi­ting the gene­ra­lity of sec­tion (a) above Sel­ler shall, at Buyer’s request, defend Buyer, its offi­cers, direc­tors, cus­to­mers, agents and employees, against all costs and expenses rela­ted to or in connec­tion with a recall action which Buyer has to conduct or has conduc­ted.
9. Insu­rance.

Sel­ler agrees to obtain and main­tain the fol­lo­wing insu­rance poli­cies at Sel­ler’s sole cost and expense:

(a) Com­mer­cial Gene­ral Lia­bi­lity Insu­rance cove­ring lia­bi­lity for pro­perty damage, per­so­nal injury and death ari­sing out of ope­ra­tions, pro­ducts-com­ple­ted ope­ra­tions, contrac­tual lia­bi­lity, with mini­mum limits of EUR 5 mil­lion per occur­rence (the “CGL Policy”);

(b) Auto­mo­bile Lia­bi­lity Insu­rance cove­ring lia­bi­lity ari­sing out of any auto (inclu­ding owned, hired, lea­sed, ope­ra­ted and non-owned autos) with mini­mum limits of EUR 1 mil­lion per occur­rence com­bi­ned single limit; and

(c) Sta­tu­tory Wor­kers’ Com­pen­sa­tion insu­rance (or equi­va­lent as requi­red under appli­cable law) as requi­red by appli­cable law.

(d) Buyer shall be named as an addi­tio­nal insu­red on the CGL Policy for all ope­ra­tions of Sel­ler hereun­der and for all lia­bi­lity for which Sel­ler is res­pon­sible under the Order. The CGL Policy shall contain stan­dard cross lia­bi­lity clauses, and Sel­ler shall cause such poli­cies to be endor­sed to pro­vide contrac­tual lia­bi­lity cove­rage spe­ci­fi­cally cove­ring this Agree­ment as an insu­red contract, if neces­sary, to obtain cove­rage of this Order the­reun­der. All Insu­rance Poli­cies shall require that Buyer be given at least thirty (30) days writ­ten notice of can­cel­la­tion, non-rene­wal, or any mate­rial change the­rein.

10. Can­cel­la­tion of Pur­chase Orders.

If Sel­ler fails to confirm Buyer’s Order within 5 busi­ness days of receipt the­reof, Buyer shall be entit­led to can­cel the Order in whole or in part, without an obli­ga­tion or lia­bi­lity to Sel­ler. Buyer’s confir­ma­tion form enclo­sed with the Order or any method of exchange or trans­mis­sion of elec­tro­nic data agreed bet­ween Buyer and Sel­ler should be used to confirm the Order. In this context, the sta­te­ment must be given in wri­ting or in text form.

11. Ter­mi­na­tion.
Buyer may at any time ter­mi­nate all or part of Sel­ler’s per­for­mance hereun­der by notice in wri­ting or in text form to Sel­ler. Upon receipt of such notice, Sel­ler shall eli­mi­nate its per­for­mance and all orders and sub­con­tracts to the extent they relate to such per­for­mance. To the extent the Order covers Pro­ducts nor­mally car­ried in Sel­ler’s inven­tory, Buyer shall have no lia­bi­lity for any ter­mi­na­tion of the Order, in whole or in part, prior to ship­ment, or will have lia­bi­lity for Pro­ducts already ship­ped to the extent Buyer has accep­ted such Pro­ducts. To the extent the Order covers Pro­ducts not nor­mally car­ried in Sel­ler’s inven­tory, the fol­lo­wing pro­vi­sions will apply. Sel­ler shall promptly advise Buyer of the quan­ti­ties of Pro­ducts and raw mate­rial on hand or pur­cha­sed prior to ter­mi­na­tion and of the most favo­rable dis­po­si­tion the­reof. Sel­ler shall com­ply with Buyer’s ins­truc­tions regar­ding dis­po­si­tion of Pro­ducts and raw mate­rials. Sel­ler shall sub­mit to Buyer writ­ten notice of its intent to sub­mit claims based on such ter­mi­na­tion within a rea­so­nable per­iod of time, in gene­ral fif­teen (15) days from the date of notice of ter­mi­na­tion and detail and sub­stan­tiate such claims within a rea­so­nable per­iod of time, in gene­ral thirty (30) days the­reaf­ter, or Sel­ler waives such claims in their enti­rety. Buyer shall only pay Sel­ler the Order price of fini­shed Pro­ducts accep­ted by Buyer, and the cost to Sel­ler exclu­ding pro­fits and losses, of work in pro­cess and raw mate­rials rela­ting hereto, less the agreed value of any Pro­ducts used or sold by Sel­ler with Buyer’s consent. Sel­ler has an obli­ga­tion to miti­gate damages and Buyer may deduct from any amounts owed any such damages that Sel­ler could have miti­ga­ted but did not. Buyer may verify such claims at any rea­so­nable time(s) by any rea­so­nable method. Buyer will not pay for fini­shed work, work in pro­cess, or raw mate­rials fabri­ca­ted or pro­cu­red by Sel­ler unne­ces­sa­rily in advance or in excess of Buyer’s deli­very requi­re­ments hereun­der. Not­withs­tan­ding the above, any pay­ments under this para­graph shall not exceed the aggre­gate price spe­ci­fied in the Order, less any pay­ments made or to be made. Pay­ment under this para­graph (if any) is Buyer’s only lia­bi­lity if the Order is ter­mi­na­ted.

12. Spe­cial Too­ling.

“Spe­cial Too­ling” means all pat­terns, dies, fix­tures, molds, jigs, models, gauges, ins­pec­tion devices, spe­cial cut­ting tools, spe­cial test devices, dra­wings, tem­plates and any repla­ce­ments the­reof, which, before the date hereof, Sel­ler did not own or use and which Sel­ler has been or will be requi­red to acquire and use solely for pur­poses of fur­ni­shing Pro­ducts hereun­der, but excludes tools, capi­tal items or pro­perty owned or fur­ni­shed by Buyer. Prior writ­ten appro­val for pur­chase of any Spe­cial Too­ling is requi­red, and such request shall detail each item and its price. Sel­ler shall use all Spe­cial Too­ling solely for per­for­mance of the Order or as Buyer directs in wri­ting, main­tain Spe­cial Too­ling in good condi­tion, fully cove­red by insu­rance, and replace it at Sel­ler’s cost if lost, sto­len, des­troyed, or other­wise ren­de­red unfit for use to the extent this is attri­bu­table to Sel­ler. Sel­ler shall per­mit ins­pec­tion and sup­ply Buyer with detai­led sta­te­ments of Spe­cial Too­ling upon request. Upon com­ple­tion, can­cel­la­tion, or ter­mi­na­tion of work for which Spe­cial Too­ling is requi­red, Sel­ler shall list Pro­ducts and the Spe­cial Too­ling used in connec­tion the­re­with, inclu­ding the una­mor­ti­zed cost and fair mar­ket value of each item, and shall in wri­ting if Buyer so elects, trans­fer pos­ses­sion and title of the Spe­cial Too­ling to Buyer, free and clear of liens and encum­brances, in exchange for the les­ser of the una­mor­ti­zed cost or fair mar­ket value of the too­ling. Buyer may dis­pose of Spe­cial Too­ling without taking pos­ses­sion the­reof and receive any resul­ting sal­vage or resale reve­nues and may enter Sel­ler’s pre­mises to obtain pos­ses­sion of any Spe­cial Too­ling.

13. Owner­ship of Work Pro­duct.

(a) For pur­poses of this Order, "Work Pro­duct" shall include, without limi­ta­tion, all desi­gns, dis­co­ve­ries, crea­tions, works, devices, masks, models, work in pro­gress, ser­vice deli­ve­rables, inven­tions, pro­ducts, Spe­cial Too­ling, com­pu­ter pro­grams, pro­ce­dures, impro­ve­ments, deve­lop­ments, dra­wings, notes, docu­ments, busi­ness pro­cesses, infor­ma­tion and mate­rials made, concei­ved or deve­lo­ped by Sel­ler alone or with others which result from or relate to the ser­vices per­for­med or Pro­ducts deli­ve­red hereun­der. Stan­dard Pro­ducts manu­fac­tu­red by Sel­ler and sold to Buyer without having been desi­gned, cus­to­mi­zed or modi­fied in any way for Buyer do not consti­tute Work Pro­duct. All Work Pro­duct, if Buyer pays the pur­chase price rele­vant for that Work Pro­duct, shall at all times be and remain the sole and exclu­sive pro­perty of Buyer. Sel­ler hereby agrees to irre­vo­ca­bly assign and trans­fer to Buyer and does hereby assign and trans­fer to Buyer all of its world­wide right, title and inter­est in and to the Work Pro­duct inclu­ding all asso­cia­ted intel­lec­tual pro­perty rights. Sel­ler hereby waives any and all moral and other rights in any Work Pro­duct or any other intel­lec­tual pro­perty crea­ted, deve­lo­ped or acqui­red in res­pect of the Pro­ducts. Buyer will have the sole right to deter­mine the treat­ment of any Work Pro­duct, inclu­ding the right to keep it as trade secret, exe­cute and file patent appli­ca­tions on it, to use and dis­close it without prior patent appli­ca­tion, to file regis­tra­tions for copy­right or tra­de­mark in its own name or to fol­low any other pro­ce­dure that Buyer deems appro­priate. Sel­ler agrees: i) to dis­close promptly in wri­ting to Buyer all Work Pro­duct in its pos­ses­sion; ii) to assist Buyer in every rea­so­nable way, at Buyer’s expense, to secure, per­fect, regis­ter, apply for, main­tain, and defend for Buyer’s bene­fit all copy­rights, patent rights, mask work rights, trade secret rights, and all other pro­prie­tary rights or sta­tu­tory pro­tec­tions in and to the Work Pro­duct in Buyer’s name as it deems appro­priate; and iii) to other­wise treat all Work Pro­duct as Buyer Confi­den­tial Infor­ma­tion as defi­ned herein. These obli­ga­tions to dis­close, assist, exe­cute and keep confi­den­tial sur­vive the expi­ra­tion or ter­mi­na­tion of this Agree­ment. All tools and equip­ment sup­plied by Buyer to Sel­ler shall remain the sole pro­perty of Buyer.

(b) Sel­ler will ensure that Sel­lers sub­con­trac­tors appro­pria­tely waive any and all claims and assign to Buyer any and all rights or any inter­ests in any Work Pro­duct or ori­gi­nal works crea­ted in connec­tion with this Order. Sel­ler irre­vo­ca­bly agrees not to assert against Buyer or its direct or indi­rect cus­to­mers, assi­gnees or licen­sees any claim of any intel­lec­tual pro­perty rights of Buyer affec­ting the Work Pro­duct.

(c) Buyer will not have rights to any works concei­ved or redu­ced to prac­tice by Sel­ler which were deve­lo­ped enti­rely on Sel­lers own time without using equip­ment, sup­plies, faci­li­ties or trade secret or Buyer Confi­den­tial Infor­ma­tion, unless: i) such works relate to Buyer’s busi­ness, or Buyer’s actual or demons­tra­bly anti­ci­pa­ted research or deve­lop­ment; or ii) such works result from any ser­vices per­for­med by Sel­ler for Buyer.

14. Confi­den­tia­lity.
(a) Sel­ler will acquire know­ledge of Buyer Confi­den­tial Infor­ma­tion (as defi­ned below) in connec­tion with its per­for­mance hereun­der and agrees to keep such Buyer Confi­den­tial Infor­ma­tion in confi­dence during and fol­lo­wing ter­mi­na­tion or expi­ra­tion of this Order. "Buyer Confi­den­tial Infor­ma­tion" includes but is not limi­ted to all infor­ma­tion, whe­ther writ­ten or oral, in any form, inclu­ding, without limi­ta­tion, infor­ma­tion rela­ting to the research, deve­lop­ment, pro­ducts, methods of manu­fac­ture, trade secrets, busi­ness plans, cus­to­mers, ven­dors, finances, per­son­nel data, Work Pro­duct (as defi­ned herein) and other mate­rial or infor­ma­tion consi­de­red pro­prie­tary by Buyer rela­ting to the cur­rent or anti­ci­pa­ted busi­ness or affairs of Buyer which is dis­clo­sed directly or indi­rectly to Sel­ler. In addi­tion, Buyer Confi­den­tial Infor­ma­tion means any third par­tys pro­prie­tary or confi­den­tial infor­ma­tion dis­clo­sed to Sel­ler in the course of pro­vi­ding Pro­ducts to Buyer. Buyer Confi­den­tial Infor­ma­tion does not include any infor­ma­tion: i) which Sel­ler law­fully knew without res­tric­tion on dis­clo­sure before Buyer dis­clo­sed it to Sel­ler; ii) which is now or becomes publi­cly known through no wrong­ful act or fai­lure to act of Sel­ler; iii) which Sel­ler deve­lo­ped inde­pen­dently without use of the Buyer Confi­den­tial Infor­ma­tion, as evi­den­ced by appro­priate docu­men­ta­tion; or iv) which is hereaf­ter law­fully fur­ni­shed to Sel­ler by a third party as a mat­ter of right and without res­tric­tion on dis­clo­sure. In addi­tion, Sel­ler may dis­close Confi­den­tial Infor­ma­tion which is requi­red to be dis­clo­sed pur­suant to a requi­re­ment of a govern­ment agency or law but only after Sel­ler pro­vides prompt notice to Buyer of such requi­re­ment and gives Buyer the oppor­tu­nity to chal­lenge or limit the scope of the dis­clo­sure.

(b) Sel­ler agrees not to copy, alter or directly or indi­rectly dis­close any Buyer Confi­den­tial Infor­ma­tion. Addi­tio­nally, Sel­ler agrees to limit its inter­nal dis­tri­bu­tion of Buyer Confi­den­tial Infor­ma­tion to Sel­lers employees who have a need to know, and to take steps to ensure that the dis­se­mi­na­tion is so limi­ted. In no event will Sel­ler use less than the degree of care and means that it uses to pro­tect its own infor­ma­tion of like kind, but in any event not less than rea­so­nable care to prevent the unau­tho­ri­zed use of Buyer Confi­den­tial Infor­ma­tion.

(c) Sel­ler fur­ther agrees not to use Buyer Confi­den­tial Infor­ma­tion except in the course of per­for­ming hereun­der and will not use such Buyer Confi­den­tial Infor­ma­tion for its own bene­fit or for the bene­fit of any third party. The min­gling of Buyer Confi­den­tial Infor­ma­tion with infor­ma­tion of Sel­ler shall not affect the confi­den­tial nature or owner­ship of the same as sta­ted hereun­der. Sel­ler agrees not to design or manu­fac­ture any pro­ducts which incor­po­rate Buyer Confi­den­tial Infor­ma­tion except as autho­ri­zed by the Order. All Buyer Confi­den­tial Infor­ma­tion is and shall remain the pro­perty of Buyer. Upon Buyers writ­ten request or the ter­mi­na­tion of this Agree­ment, Sel­ler shall return, trans­fer or assign to Buyer all Buyer Confi­den­tial Infor­ma­tion, inclu­ding all Work Pro­duct, as defi­ned herein, and all copies the­reof.

15. Blan­ket Pur­chase Orders.

If Pro­ducts pur­cha­sed are cove­red under a blan­ket Order, no ship­ment can be made, or invoice issued, until a release Order is issued. Unau­tho­ri­zed ship­ments will be held at Sel­ler’s risk and expense. A blan­ket Order autho­rizes Sel­ler to pro­cure raw mate­rials suf­fi­cient to meet deli­very of the quan­tity of a release Order, but only to manu­fac­ture and deli­ver such res­pec­tive quan­ti­ties at such res­pec­tive times as is indi­ca­ted on the release Order pro­vi­ded by Buyer. Buyer will not assume any lia­bi­lity in the event Sel­ler engages in any manu­fac­ture before the time spe­ci­fied, or in excess of the quan­tity requi­red to meet such res­pec­tive deli­ve­ries.

16. Changes in Pro­cess or Method of Manu­fac­tu­ring.

Sel­ler agrees that it will not invoke any changes in pro­cess or method or loca­tion of manu­fac­tu­ring without Buyer’s prior consent in wri­ting or in text form. Sel­ler fur­ther agrees that any contem­pla­ted changes in pro­cess or method of manu­fac­tu­ring will be sub­mit­ted to Buyer in suf­fi­cient time to enable Buyer a rea­so­nable oppor­tu­nity in which to eva­luate such changes.

17. Non-Inter­fe­rence with Busi­ness.

During and for a per­iod of two years imme­dia­tely after the ter­mi­na­tion or expi­ra­tion of this Agree­ment, Sel­ler agrees not to unlaw­fully inter­fere with the busi­ness of Buyer in any man­ner, and fur­ther agrees not to soli­cit or induce any employee or inde­pendent contrac­tor to ter­mi­nate or breach an employ­ment, contrac­tual or other rela­tion­ship with Buyer.

18. Non-Exclu­sive Agree­ment.

This is not an exclu­sive agree­ment. Buyer is free to engage others to per­form ser­vices or pro­vide Pro­ducts the same as or simi­lar to Sel­lers. Sel­ler is free to, and is encou­ra­ged to, adver­tise, offer and pro­vide Sel­lers ser­vices and/or goods to others; pro­vi­ded howe­ver, that Sel­ler does not breach this Agree­ment.

19. Limi­ta­tion of Lia­bi­lity.

IN NO EVENT SHALL BUYER BE LIABLE TO SEL­LER OR SEL­LERS AGENTS, SUB­CON­TRAC­TORS, OR ANY THIRD PARTY FOR ANY INCI­DEN­TAL, INDI­RECT, SPE­CIAL OR CONSE­QUEN­TIAL DAMAGES ARI­SING OUT OF, OR IN CONNEC­TION WITH, THIS AGREE­MENT, REGARD­LESS OF WHE­THER BUYER WAS ADVI­SED OF THE POS­SI­BI­LITY OF SUCH DAMAGE AND REGARD­LESS OF WHE­THER SUCH DAMAGES WERE CAU­SED BY BUYERS NEGLI­GENCE, BREACH OF CONTRACT, OR OTHER ACTIO­NABLE CONDUCT OR OMIS­SION.

20. Publi­city.

Sel­ler shall not, without the prior writ­ten consent of Buyer, adver­tise or other­wise dis­close that Sel­ler has ente­red into the Order with Buyer. Sel­ler shall not use Buyer’s name or tra­de­mark in any press release, mar­ke­ting or adver­ti­sing mate­rials without Buyer’s prior writ­ten consent.

21. Wai­ver.

No wai­ver of any pro­vi­sion of these terms and condi­tions (or any right or default hereun­der) shall be effec­tive unless in wri­ting and signed by Buyer. Any such wai­ver shall be effec­tive only for the ins­tance given, and shall not ope­rate as a wai­ver with res­pect to any other rights or obli­ga­tions under the Order or appli­cable law in connec­tion with any other ins­tances or cir­cum­stances.

22. Entire Agree­ment.

These terms and condi­tions, toge­ther with the terms on the face of any Order issued hereun­der, consti­tute the final and entire agree­ment bet­ween Buyer and Sel­ler with res­pect to the pur­chase of Pro­ducts and super­sede any terms and condi­tions in any ack­now­led­ge­ment form, invoice or other docu­ment of Sel­ler. These terms and condi­tions may be amen­ded only by a writ­ten ins­tru­ment duly exe­cu­ted by both par­ties, and may not be amen­ded orally or by course of per­for­mance. This also applies to any amend­ment of this pro­vi­sion requi­ring writ­ten form as well as to any wai­ver the­reof.

23. Choice of Law and Juris­dic­tion.

The Order shall be gover­ned by and construed in accor­dance with the laws of the Fede­ral Repu­blic of Ger­many, exclu­sive of the Uni­ted Nations Conven­tion on the contracts for inter­na­tio­nal sale of goods and without refe­rence to its choice of law rules. 

The courts com­petent for the city in which the Buyer or any of its affi­liates has its regis­te­red place of busi­ness shall have the exclu­sive juris­dic­tion over any issues rela­ting to the Order.

24. Assi­gn­ment.

Sel­ler may not assign, trans­fer or sub­con­tract the per­for­mance of its ser­vices, or any of its rights and/or obli­ga­tions hereun­der, without Buyer’s prior writ­ten consent.


ISSUED August 2017.