- Formation; Offer; Acceptance; Exclusive Terms.
- Each purchase order, together with these terms and conditions of purchase (the “Terms”), is an offer by the buyer (the “Buyer”) named on the blanket or spot buy purchase order (each an “Order”) to the party to whom such Order is addressed and such party’s applicable affiliates and subsidiaries (“Seller”) to enter into the agreement it describes, and, subject to these Terms, it shall be the complete and exclusive record of such offer and agreement for the purchase of the products (“Products”) and/or services (“Services”) (Products and/or Services may also be referred to as “Ordered Items”). No Order constitutes an acceptance by Buyer of any offer or proposal by Seller, whether reflected in Seller’s quotation, acknowledgement, invoice, or otherwise. In the event that any Seller quotation or proposal is held to be an offer, that offer is expressly rejected and is replaced in its entirety by the subsequent Order made by Buyer.
- A contract is formed when Seller accepts the offer of Buyer. Acceptance of an Order by Seller may be accomplished by, the earlier of Seller’s: A) shipment of Products; B) performance of Services; C) commencement of work on an Order; D) written acknowledgement confirming acceptance; or E) any other conduct of Seller that recognizes the existence of a contract pertaining to the Ordered Items. The term Order shall refer to the Buyer’s offer and, once accepted by Seller, the resulting contract.
- Acceptance is expressly limited to these Terms, and any terms and conditions that are otherwise expressly referenced on the face of the Order, are incorporated herein by reference, or as mutually agreed upon, in writing, as evidenced by a signed agreement amongst the parties. No purported acceptance of any Order on terms and conditions which modify, supersede, supplement or otherwise alter these Terms shall be binding upon Buyer and such terms and conditions are hereby rejected and replaced by these Terms unless Seller’s proffered terms or conditions are accepted in a writing signed by an authorized representative of Buyer (a “Signed Writing”), notwithstanding Buyer’s acceptance of or payment for any shipment of the Ordered Items or similar act of Buyer. While a contrary proposal by Seller does not operate as a rejection of the Order, it is deemed a material alteration of the Order.
- As an exception to the foregoing, any signed written agreement between Buyer and Seller regarding the subject matter of the Order that contains terms and conditions that are inconsistent with these Terms, that is in effect at the time Buyer submits an Order, will have priority over these Terms.
- Buyer’s affiliates may from time to time administer purchasing for Buyer and its other affiliates and subsidiaries, and issue Orders containing logos of Buyer or its affiliates but identifying the Buyer as the responsible party. Seller acknowledges and agrees that no such Order shall constitute or be interpreted to represent an Order of such affiliate or a guaranty from such affiliate of any obligations or liabilities of the Buyer identified on the Order.
- Applicability of Terms.
- These Terms, as may be amended from time to time, apply to the purchase by Buyer of Ordered Items or on any document expressly referenced on the face of such Order describing such Ordered Items. Certain of the sections of the Terms apply only to particular types of Ordered Items, but only where expressly limited to those types of Ordered Items indicated on the Order.
- Buyer may provide Seller with forecasts of its future anticipated Ordered Item requirements. Seller acknowledges that any such forecasts, including, without limitation, estimated annual volumes, are for informational purposes only and are based on a number of factors which may change over time. Buyer makes no representation, warranty, guaranty or commitment of any kind or nature, express or implied, regarding any such forecasts, including, without limitation, with respect to the accuracy or completeness of such forecasts.
- Quantity/Firm Orders. Orders will be issued to order Ordered Items. In addition to Buyer’s right to terminate an Order pursuant to the Terms, Orders may be modified by Buyer outside of the firm period (as defined herein)for the particular Ordered Items. The firm period for a particular Ordered Item is the Supplier’s quoted lead time/firm period for such Ordered Item (“Firm Period”). Notwithstanding the foregoing, the Firm Period for Orders for Products shall not exceed fifteen days for domestically ordered, Ordered Items and forty-five (45) days for internationally ordered, Ordered Items. Unless the Order specifically provides that Seller shall produce one hundred percent (100%) of Buyer’s requirements for the Ordered Items or is an Order for Proprietary Products, Buyer shall have the right to obtain a portion of such Ordered Items from another third party source or from Buyer’s internal sources. In the event of an interruption of supply, Buyer shall also have the right to cure the issue by obtaining the related Products from third party sources notwithstanding any applicable requirements contract.
- Proprietary Products. Buyer purchases and resells certain proprietary branded products that are manufactured and sold exclusively to Buyer and its affiliates, including, without limitation, Hercules and Ironman tires (“Proprietary Products”). Awards for Proprietary Products given to Seller, as evidenced by Orders, license agreement grants and blanket Orders, are requirements contracts for such Proprietary Products for the life of the applicable revision of the Product in question with the quantity set by the demand of Buyer and its affiliates for such Product. The parties agree to reasonably work together to set non-binding forecasts for such Proprietary Products to assist the Buyer and Seller in setting capacity requirements and meet the production requirements. Should capacity constraints, force majeure or legal impracticability prevent the Seller from meeting any related Order, Seller agrees to equitably apportion its available capacity and raw materials, as applicable, to meet Buyer’s Order as soon as reasonably possible and to not unreasonably disadvantage Buyer in relation to other customers of Seller. A successor product to a Proprietary Product or other Product, shall not be deemed to be the same Product unless separately agreed in a signed writing by the parties.
- If the Seller is producing a Proprietary Product or service for Buyer, Buyer grants to Seller the non-transferable, non-exclusive permission to use the “Buyer Special Features” (as defined below) for the purpose of manufacturing the Products exclusively for sale to Buyer.
- This permission does not authorize Seller, and Buyer expressly forbids Seller, to directly or indirectly manufacture, distribute or sell products bearing the Buyer Special Features other than for Orders, unless authorized by Buyer in writing.
- All trademarks and any other marks, logos, and symbols designated by Buyer from time-to-time supplied by Buyer or which are distinctive of Buyer’s products (the “Buyer Special Features”) shall be the property of Buyer and shall be used by Seller only for Buyer. Buyer Special Features include, without limitation, trade dress elements that are unique to the related products including, without limitation, the unique aspects of the appearance of Products or subcomponents of the Products, the appearance of the Product tread, tire shoulder design and sidewall design, all drawings of the Proprietary Products and drawings of the molds created for the production of the Proprietary Products containing any of the Buyer Special Features. Products with Buyer Special Features which are not delivered to Buyer for any reason shall not be sold or transferred to any third party without Buyer’s prior written authorization, or unless and until all labels, tags, packaging and markings making use of, or resembling, the Buyer Special Features or otherwise identifying the Products to Buyer have been permanently removed and destroyed. At the termination of the program or the particular supply relationship, Seller agrees to provide/return, at no cost to Buyer, all material containing the Buyer Special Features to Buyer. Buyer warrants that none of the Buyer Special Features it requests Seller to include on its packaging will subject Seller to any claim for infringement by any person or entity. Buyer will defend any suit or proceeding brought against Seller, its parent, and its subsidiaries based on a claim that the Buyer Special Features (not modified by Seller or any third party) in whole or in part infringe any patent, copyright, trade secrets, or other intellectual property right. Nothing herein will grant to Buyer any rights in any of Seller’s patents, marks, trademarks, trade names, trade secrets, copyrights, or other intellectual property rights related to the Product.
- Seller acknowledges that as between Buyer and Seller, Buyer is the exclusive owner of the Buyer Special Features, and that all goodwill created through the use of the Buyer Special Features shall at all times belong to Buyer, and agrees that it will not contest such ownership anywhere in the world. Seller further agrees that, except as expressly provided in these Terms, it will not directly or indirectly use or register any of the Buyer Special Features, or any trademark that is the same as or similar to a trademark owned by Buyer, in English or any other language or translation.
- In addition to Buyer rights in Bailed Property, as defined below, Buyer shall own or have a right to purchase all molds, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, mold containers, mold drawings, and other tooling containing/creating Buyer Special Features (“Special Feature Tooling”), by direct purchase under a separate agreement or Order, by amortization from the purchase price of the Product over the expected Special Feature Tooling lifecycle, or at the termination of the relationship via Buyer purchase of such Special Feature Tooling for its then net book value reduced by the reasonable amortization from the purchase price of all Products purchased that made use of such Special Feature Tooling. Buyer agrees to reimburse, indemnify, defend, and hold harmless Seller from and against any damage, expenses, judgments, loss or liability (including reasonable attorneys’ fees and expenses) arising from: (i) the gross negligence and willful misconduct of Buyer, its subsidiaries, affiliates, employees and directors in connection with the Products; or (ii) intellectual property infringement claims of third parties arising out of or in connection with Buyer’s use or ownership of the Buyer Special Features, provided that Seller has used the Buyer Special Features in accordance with Buyer’s instructions and these Terms.
- Buyer’s obligations to indemnify Seller under the Terms shall be conditioned upon Seller: (i) providing Buyer with prompt written notice of such claim, (ii) permitting Buyer to assume and solely control the defense of such claim and all related settlement negotiations, with counsel chosen by Buyer, and (iii) cooperating at Buyer’s request with the defense or settlement of such claim, which cooperation shall include providing reasonable assistance and information at no cost to Buyer.
- Shipment and Delivery; Alternate Source.
- All Products must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Order. Expenses incurred due to failure to comply with these terms are the responsibility of Seller. Seller’s name, complete ship-to address and Order number must appear on all invoices, bills of lading, packing slips, cartons, unit labels, and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, Order number, number of cartons and weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail. By its acceptance of this Order, Seller waives any right it may have under the Uniform Commercial Code or under any other applicable law, rule, regulation, trade code or otherwise to stop transit of the Products covered by this Order, reclaim and retain possession of the Products until receipt of payment, or otherwise divert or otherwise interfere with the delivery of the Products to the Buyer, and agrees that any lender to the Buyer may rely on and enforce such waiver.
- Title to and all risk of loss or damage to Ordered Items remains with Seller until acceptance by Buyer of conforming Ordered Items at the required destination per the INCO term and delivery point on the Order. If the Order or other signed written agreement does not specify, the delivery terms are DDP (Delivery Duty Paid) per INCOTERMS 2020 to Buyer’s location. Time is of the essence for all deliveries of Ordered Items. Deliveries are to be made only in the quantities and at the times specified in the Order. If delivery is not expected to be made on time, Seller must immediately notify Buyer and take reasonable steps, at Seller’s cost, to expedite and/or reorganize delivery, as applicable, to minimize the delay to Buyer. Buyer may cancel any order or portion thereof if delivery is not made on time or if notice is given that a delivery is expected to be late.
- Buyer may reject any delivery or cancel all or any part of any Order if Seller fails to make delivery in conformity with the terms and conditions of these Terms including, without limitation, any failure of Ordered Items to conform to the warranties or specifications (“Specifications”) and performance criteria published by Seller for Ordered Items. Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries, nor does it convey that Buyer will honor any delivery, transportation or related fees. If Seller (i) fails to supply Ordered Items, (ii) fails to supply Ordered Items meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, and Seller does not provide a comparable quality substitute (for which substitution Seller must assume any expense and price differential), then Buyer may, in its sole discretion, purchase Ordered Items from another supplier as an alternate source as Buyer, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses above the original cost agreed to between Buyer and Seller and incurred by Buyer in purchasing Ordered Items from such other supplier as an alternate source. Upon identification and notification of defective Ordered Items or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within one week of the shipment of the defective Ordered Item, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence.
- Prices; Payment; Invoices.
- Seller shall submit invoices via the agreed upon method (e.g., Procure-to-Pay Portal, Electronic Transmission, Email). Seller’s invoice should clearly reflect a detailed description of the Ordered Items provided and include the amount of the charge for such Ordered Items as a separate line item separating Products and Services in conformance with applicable Order or other signed agreement between the parties, as applicable. If hourly, the specific number of hours and description of applicable work is required. Buyer also requires Seller to include, on the face of the invoice, the “ship to” address for any purchase of Products and the location where any applicable Services are performed. Buyer requires Seller to accept payment in one of the following methods; EFT or at Buyer’s discretion. Invoices shall contain such detail as Buyer may reasonably require from time to time. Amounts shall be invoiced promptly after the Services performed or work product delivered. Amounts not invoiced by Seller to Buyer within 90 days after such amounts could first be invoiced under this Order may not thereafter be invoiced, and Buyer shall not be required to pay such amounts.
- The items listed on Seller’s invoice must appear in the same sequence as listed on the Order. Each invoice must be submitted by agreed method (e.g., EDI, pdf, paper). Supporting documentation may be required at Buyer’s option.
- Invoices omitting the applicable Order number, or other required information, will not be paid.
- Buyer shall pay Seller for all Services and applicable taxes invoiced in arrears in accordance with the terms of this Order or other signed agreement between the parties as set forth on the face of the applicable Order, or if not otherwise agreed between the parties, within sixty (60) calendar days of the later of: (i) the date of receipt of a valid invoice by Buyer and (ii) the date of delivery of the related Ordered Items. Buyer reserves the right to pay prior to the expiration of the sixty (60) day period unless an executed agreement states otherwise.
- In no event will the price charged for each Ordered Item by Seller under these Terms be less favorable than the lowest price charged by Seller to other customers purchasing similar or lesser quantities of the Ordered Items.
- Inspection/Testing. Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect all Ordered Items and to reject any or all Ordered Items that are in Buyer’s judgment defective or nonconforming. Buyer may request, at its option, repair or replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Order may be returned to Seller at Seller’s expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in these Terms relieves Seller from the obligation of testing, inspection and quality control.
- As to direct Products and Services, meaning those Products and Services sold or otherwise provided by Seller to Buyer that Buyer intends to resell to its customers: Seller shall obtain at its cost and expense all necessary government filings, marks and registrations to allow Buyer to promote, sell and deliver the Products as set forth herein, including, but not limited to, Department of Transportation, Transport Canada and IN-METRO. Seller shall be solely responsible for registering Uniform Tire Quality Grading with the National Highway Traffic Safety Administration and any related testing and registration requirements with any of the foregoing and with the Canadian Motor Vehicle Safety Act, its regulations and the requirements of Transport Canada.
- Seller shall be responsible for all reporting required in the United States to comply with the TREAD Act, FMVSS requirements and DOT requirements, under the Canadian Motor Vehicle Safety Act and related regulations and Transport Canada’s requirements, as applicable and as amended from time to time, as to any of the Ordered Items, or any similar laws in any other countries where the Ordered Items are sold or delivered.
- Confidentiality and Proprietary Rights. Any specifications, drawings, sketches, models, samples, tools, technical information, methods, processes, techniques, shop practices, plans, know-how, trade secrets, or data, written, oral or otherwise (collectively, the “Information”) furnished to Seller under, or in contemplation of, these Terms remain Buyer’s property. All copies of such Information, in written, graphic or other tangible form, must be immediately returned to Buyer upon its request. The Information shall be kept confidential by Seller, shall be used only in the fulfillment of Orders, or in performing Seller’s obligations under these Terms, and may be disclosed or used for other purposes only upon such terms as may be agreed upon between Buyer and Seller in writing. Seller hereby grants to Buyer a perpetual, transferable, and royalty-free license to use, sell, offer for sale, import, distribute, advertise, market and promote Products (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part the patent, copyright, trademark, trade dress or other intellectual property rights of Seller. Seller hereby assigns to Buyer, and not otherwise to make use of, any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of the Agreement by Seller or any employee of Seller or any other person working under Seller’s direction, and such assignment shall be considered as additional consideration for the making of these Terms. Upon request of Buyer or completion of performance of these Terms, Seller shall deliver to Buyer any and all information relating to any such invention, improvement or discovery, and shall cause employees or others subject to Seller’s instruction to sign as appropriate all documents necessary to enable Buyer to file applications for patents throughout the world and to obtain title thereto.
- Warranties. Seller expressly represents, warrants and guarantees to Buyer and its successors and assigns, that all Ordered Items will: i) be competitive in price, quality, delivery and technology; ii) conform to all applicable specifications, standards, drawings, samples, descriptions and revisions; iii) conform to all applicable laws, orders, regulations and standards in countries where Ordered Items or other products incorporating Ordered Items (“Final Product”) are sold and/or purchased by Buyer, including, without limitation, that such Ordered Items meet and do not violate all environmental, safety, language, product labelling and privacy laws and regulations; iv) be merchantable and free of defects in a) design (to the extent designed by Seller or any of its subcontractors, agents or suppliers, even if the design has been approved by Buyer), b) materials (including, without limitation, rust or other contamination), and c) workmanship; v) be fit and sufficient for the purposes intended by Buyer (Seller is responsible for determining Buyer’s purposes and assuming the suitability of the Ordered Items to operate within those purposes and the operating environment of the Final Product), vi) be free of all liens, claims and encumbrances whatsoever, including, without limitation claims of infringement of intellectual property; vii) be, unless expressly provided for differently in the Order, manufactured entirely with new materials; viii) be, in the case of Services or technical data, performed or prepared in a professional and workmanlike manner and in compliance with Buyer’s instructions or other requirements, ix) be, in the case of software or code making up any part of the Ordered Items, free from viruses, disabling code, and open source software, x) Seller has the right to grant Buyer a license to any software embedded or incorporated into any Ordered Items. In addition to the foregoing warranties, Seller will assign and pass through to Buyer all representations and warranties provided by manufacturers of parts or components of the Ordered Items.
- Warranty Term. The term of this warranty by Seller shall be the longer of:
- the duration of any warranty provided by Buyer in connection with Buyer’s resale of the Ordered Items, if and as applicable, which durations are publicly available and will be provided by Buyer upon written request and are INCORPORATED HEREIN BY REFERENCE; or
- five (5) years from the date the related Ordered Item is first placed into operation.
- Warranty Term. The term of this warranty by Seller shall be the longer of:
(c) The period for such warranty agreed by the parties in a separate written agreement.
- Non-Exclusive Warranties. The warranties contained in this section are in addition to and are not to be construed as restricting or limiting any warranties or remedies of Buyer, express or implied, which are provided by Seller or by law. Any attempt by Seller to limit, disclaim, or restrict any such warranties or remedies of Buyer, in any manner shall be null, void, and
- Termination for Convenience. Buyer may terminate the Order in whole or in part, as to any undelivered Ordered Items, upon fifteen (15) days’ written notice to Seller.
- Termination for Cause. If Seller defaults in the performance of its obligations under the Order and is unable to cure the default within twenty (20) days following notice of the default, Buyer may terminate the Order upon written notice for default. For payment defaults, the notice period and ability to cure is extended to thirty (30) days.
- Termination, Generally. Upon the termination of the Order, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Order, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect work in progress and materials on hand purchased for or committed to under the Order in its own and in its suppliers’ or subcontractors’ plants pending Buyer’s instructions. Buyer shall not owe Seller any lost profit or payment for any materials or Products that Seller may consume or sell to others in its ordinary course of business.
- General. Seller shall reimburse, indemnify, defend and hold Buyer, its affiliated companies, and its respective officers, directors, employees, customers, users and agents (collectively the “Indemnitees”) harmless from and against all suits, actions, losses, damages, claims, or liability of any character, type, or description, including without limiting the generality of the foregoing, all expenses of litigation, court costs, and attorneys’ fees for injury or death to any person, or injury to any property (collectively, “Damages”), received or sustained by any person(s) or property, arising out of, occasioned by, attributable or related to: i) the Ordered Items; ii) any breach of any representation or warranty made by Seller; iii) any failure by Seller to perform or fulfill any of its covenants or due to its acts or omissions; iv) any litigation, proceeding or claim by any third party relating in any way to the obligations of Seller or the Ordered Items; or v) any act or omission, negligent or otherwise, in the performance of any Order, whether by Seller, its subcontractors or employees. Seller shall not consummate any settlement without the relevant Indemnitees’ prior written consent. Seller’s indemnification obligation will continue in full force and effect notwithstanding the termination or expiration of any Order or any other related agreement. In any claim against any of the Indemnitees by a subcontractor or employee of Seller, or anyone directly or indirectly employed by any of them or anyone for whose acts they may be liable, these indemnification obligations shall not be limited in any way under any applicable worker’s compensation act, disability or other employee benefit act. Notwithstanding anything to the contrary in these Terms, Seller’s duty to defend any indemnified party under this Section does not apply in any action, lawsuit, or other proceeding in which the sole basis for the claim is the negligence of the indemnified party in the display, assembly, service, inspection, repair or installation of the Products. Further, in the event that a court of competent jurisdiction determines in a final non-appealable judgment that any claim for which defense is tendered involves the negligence of an indemnified party or the breach of an obligation by an indemnified party, then Buyer and Seller shall each contribute to the amount of costs, and expenses, including attorneys’ fees, disbursements and costs of investigation actually and reasonably incurred and paid or payable by Seller in such proportion as is appropriate to reflect the comparative degree of culpability of the Seller and indemnified party in connection with the events that resulted in such claims. Such determination of the comparative degree of culpability shall be made by the parties, or if the parties cannot agree, by any adjudication or proceeding or upon the determination of an arbitrator, as applicable. Intellectual Property Indemnity. Seller represents and warrants to the Indemnitees that the Ordered Items or their use shall not infringe any intellectual property rights including, without limitations, claims arising from patent, copyright, trademark, trade secret, or other intellectual property infringement. Seller agrees to hold the Indemnitees harmless from and defend the Indemnitees against any such claim of intellectual property infringement, including any Damages resulting from that claim, the cost to Indemnitees of complying with any preliminary or permanent injunction, and all other costs of defense (including the attorneys’ fees and costs), in connection with any breach of the foregoing.
- Transition Support. In case of termination or expiration of any Order or other agreement, in whole or in part, the parties agree to work together in good faith to promptly develop an exit plan for the manufacturing by Seller and purchase by Buyer, under the terms of such agreements. At Buyer’s request, Seller agrees to produce a safety stock of Ordered Items under the terms hereof, including, without limitation, price, to support Buyer’s requirements for a transition period for twelve (12) months for Direct Items and six (6) months for other Ordered Items from the applicable termination date.
- General. Seller shall at all times maintain commercial general liability insurance, including products and completed operations liability, with limits and in the form as requested by Buyer, and workers’ compensation insurance as required by law. Seller shall have Buyer added as an additional insured on the commercial general liability insurance policy and within thirty (30) days of the effective date of these Terms, Seller shall furnish Buyer with a certificate of insurance and applicable insurance policy endorsements evidencing such insurance. All such coverage shall be primary, non-contributory and shall contain a waiver of subrogation against Buyer.
- Direct Items. The term “Direct Items” refers to Ordered Items purchased by Buyer for resale, including, without limitation, tires, wheels, Proprietary Products and related parts and components. If Seller sells Direct Items to Buyer, Seller shall obtain and maintain, at its expense, a policy of Products Liability Insurance in the amount of not less than Twenty Million Dollars ($20,000,000.00) for each occurrence and Twenty Million Dollars ($20,000,000) aggregate which may arise out of the Products supplied by Seller. Said insurance policy shall be maintained in full force and effect, at the sole cost and expense of Seller, issued by reputable and financially responsible insurance companies with a minimum A.M. Best rating of A- or equivalent rating by other rating agencies, and have established operations in the United States of America and, to the extent Products or Services are destined for Canada, in Canada as well. Seller agrees that it will cause Buyer and its designated affiliates to be named as an additional insured on said Products Liability policy. Seller shall furnish to Buyer either a certificate showing compliance with these insurance requirements or certified copies of all insurance policies within ten (10) days of Buyer’s written request. The policies shall provide, and the certificate shall certify, that Buyer is included as an additional insured on all liability policies on a primary and non-contributory basis for each of the following, as applicable: ongoing operations, completed operations, and products liability. The certificate will also provide that Buyer will receive at least thirty (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. Neither Seller’s furnishing of certificates of insurance nor purchase of insurance shall release Seller of its obligations or liabilities under these Terms or any Order.
- Unless otherwise stated in the Order, the Order price is inclusive of all applicable federal, state, provincial, and local taxes including sales, value added, surcharges, or similar turnover taxes or charges. If the Products purchased from Seller are for resale, and Seller will not charge US sales, use, or similar taxes, or Canadian provincial sales taxes of British Columbia, Saskatchewan, or Manitoba on its invoices to Buyer if Buyer has provided Seller a valid resale/exemption certificate or a valid PST or RST number. If Seller is required by law to pay or collect from Buyer any taxes or charges, Seller will separately invoice Buyer for such taxes or charges, and for GST/HST/QST purposes, provide to Buyer all the prescribed information necessary for Buyer to claim its input tax credits and input tax refunds. Each party hereto shall be responsible for any taxes on property it owns or leases, for franchise and privilege taxes on its business, for taxes based on its net income or gross receipts, and for employer-related taxes with respect to its personnel.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BUYER’S AGGREGATE LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE TERMS EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR INTEREST CHARGES OR PENALTIES OF ANY DESCRIPTION.
- Periods of Limitations. No lawsuit may be brought against Buyer under these Terms unless the suit is instituted within two years of the date such claim accrued.
- Governing Law.
- Governing Law; Venue: U.S. Transactions. If either an Order is issued, in whole or part, for Ordered Items to be shipped to a Buyer location within the United States of America or its territories (as shown by the ship to or receiving address of Buyer), then A) such Order is to be construed according to the laws of the United States of America and the State where such Buyer has its principal place of business:
The Hercules Tire & Rubber Company
Tire Pros Francorp, LLC
Other U.S. Buyers, including, without limitation, American Tire Distributors, Inc.
as listed above by Buyer, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any choice of law provisions that require application of any other law, and B) each party hereby agrees that the forum and venue for any legal or equitable action or proceeding arising out of, or in connection with, such Order will lie in the United States District Court for the and/or the corresponding state courts governing the county named above, as applicable and each party specifically waives any and all objections to such jurisdiction and venue.
- Governing Law; Venue: Canadian Transactions. Orders from Canadian Buyers are to be construed according to the laws of the Province of Ontario and the laws of Canada applicable therein, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any choice of law provisions that require application of any other law; any legal or equitable action or proceedings by Buyer against Seller arising out of, or in connection with, any Order may be brought by Buyer in any court(s) having jurisdiction over Seller or, at Buyer’s option, in any court(s) having jurisdiction over Buyer’s receiving facility, in which event Seller hereby consents to such jurisdiction and venue, including service of process in accordance with applicable procedures; and any legal or equitable actions or proceedings by Seller against Buyer arising out of, or in connection with, such contract may be brought by Seller only in the court(s) having jurisdiction over the Buyer’s receiving facility.
- Waiver of Jury Trial. BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF BUYER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY ORDER OR ANY OTHER DOCUMENT PERTAINING TO ANY ORDER.
- General. All Ordered Items supplied to Buyer shall comply with, and Seller agrees to be bound by, all applicable foreign, United States and Canadian, federal, state, provincial and local laws, orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions, or other requirements contained in, issued under, or adopted pursuant to such laws, including, without limitation, product content and labeling, including, without limitation, the U.S. Toxic Substances Control Act and applicable RoHS and REACH regulations, anti-bribery, anti-corruption laws, Conflict Mineral prohibition and Conflict Mineral disclosure requirements. Seller further agrees that neither it nor any of its subcontractors 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 production or provision of Ordered Items. Delivery of any Ordered Items shall constitute Seller’s representation to Buyer that there has been and will be full compliance with all applicable laws and, at Buyer’s request, Seller shall certify in writing its compliance with the foregoing.
- Environmental Compliance. Seller shall comply with a) all applicable environmental laws and regulations, and b) the environmental compliance guidelines set forth by Buyer from time to time.
- Compliance Matters. Seller must comply with all Buyer policies applicable and provided to Seller or directed thereto by Buyer. Seller must strictly comply with all applicable statutes, laws and regulations (“Laws”), including without limitation, all applicable environmental, health and safety, trade, and import/export Laws.
- Anti-Corruption. Seller shall at all times conduct its activities in accordance with all applicable laws, rules, regulations and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Officials Act (Canada) and all national, state, provincial or territorial anti-bribery and anti-corruption statutes. Accordingly, Seller shall make no offer, payment or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any Buyer employee or agent, any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given or promised for the purpose of influencing any decision or act to assist Seller or Buyer or otherwise obtaining any improper advantage or benefit.
- Customs. Upon request, Seller will promptly furnish Buyer with all certificates of origin, bills of materials, and domestic value-added and other information relating to the costs and places of origin of the Products and the materials contained therein or used in the performance thereof, as may be required by Buyer to comply fully with all customs, tariffs and other applicable governmental regulations. Seller will comply with all such regulations. Seller will indemnify and hold Buyer, Buyer’s customers and their respective successors, assigns, representatives, employees, agents, subsidiaries, affiliates, directors, officers and shareholders harmless from and against all liabilities, demands, claims, losses, costs, damages and expenses of any kind or nature (including attorneys’ fees and costs, fines and penalties) arising or resulting from (i) Seller’s delay in furnishing such certificates or other information to Buyer, (ii) any errors or omissions contained in such certificates, and (iii) any non-compliance by Seller with such regulations. Seller agrees to fully participate in all CVD and tariff related investigations.
- BAILED PROPERTY
- All supplies, materials, machinery, equipment, tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, mold containers, documentation (including engineering specifications and test reports), blueprints, designs, specifications, drawings, photographic negatives and positives, artwork, copy layout, electronic data, consigned material for production or repair and other items furnished by Buyer (or Buyer’s customers), either directly or indirectly, to Seller or to any sub-supplier of Seller in connection with or related to any Order, or for which Seller has been fully reimbursed by Buyer (collectively, “Bailed Property”) will be and remain the property of Buyer (or Buyer’s customers, as applicable) and be held by Seller on a bailment at-will basis. Notwithstanding the above, ownership of the molding for the tire Products set forth in the applicable supply agreement shall be determined as specifically set forth in such supply agreement.
- Seller will bear the risk of loss of and damage to Bailed Property and Seller, at its own expense, will keep Bailed Property fully insured for the benefit of Buyer, naming Buyer as the loss payee and an additional insured. The Bailed Property will at all times be properly housed and maintained by Seller, will not be used by Seller for any purpose other than the performance of the Orders, will be deemed to be personal property, will be conspicuously marked by Seller to identify it as the property of Buyer and indicate Buyer’s name and address, will not be commingled with the property of Seller or with that of a third person, and will not be moved from Seller’s premises without the prior written approval by Buyer. Seller will maintain a written inventory of all Bailed Property that sets forth a description of the location of all Bailed Property and provide a copy of this index to Buyer upon request. Seller, at its expense, will maintain, repair and refurbish Bailed Property. All replacement parts, additions, and accessories for such Bailed Property will automatically become Buyer’s property upon their incorporation into or attachment to the Bailed Property. Any missing components of or inserts to any Bailed Property will be replaced by Seller.
- Buyer may, at any time, for any reason and upon full reimbursement or payment of Seller’s cost of the Bailed Property, retake possession of or request return of any Bailed Property, without the necessity of obtaining a court order. Upon Buyer’s request, the Bailed Property will be immediately released to Buyer or delivered to Buyer by Seller, either (i) F.O.B. transport equipment at Seller’s plant, properly packaged and marked in accordance with the requirements of the carrier selected by Buyer to transport such property, or (ii) to any location designated by Buyer, in which event Buyer will pay to Seller the reasonable cost of delivering such Bailed Property to such location. Notwithstanding anything in these Terms to the contrary, Buyer may commence an injunctive action or proceeding to obtain possession of the Bailed Property in any federal, state or provincial court having competent jurisdiction. Seller agrees to engrave Buyer’s name on any Bailed Property at its cost and expense and permit Buyer to reasonably audit such compliance. All payments made by Buyer to Seller to pay for third parties to create any Bailed Property shall be held in trust by Seller for the purpose of the purchase of the Bailed Property in Buyer’s name.
- Seller acknowledges and agrees that (i) Buyer is bailing the Bailed Property to Seller for Seller’s benefit; (ii) Seller has inspected the Bailed Property and is satisfied that the Bailed Property is suitable and fit for its intended purposes, and (iii) BUYER HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE BAILED PROPERTY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Buyer will not be liable to Seller for any loss, damage, injury (including death) or expense of any kind or nature caused, directly or indirectly, by the Bailed Property including, without limitation, its use or maintenance, or its repair, service or adjustment, or by any interruption of service or for any loss of business whatsoever or howsoever caused, including, without limitation any anticipatory damages, loss of profits or any other indirect, special or consequential damages.
- Contractual Recoupment and Set-Off. All amounts due from Buyer or Buyer’s affiliates to Seller or Seller’s affiliates under these Terms or any other agreement will be net of any indebtedness or other obligations of Seller or Seller’s affiliates to Buyer or Buyer’s affiliates. With respect to any monetary obligations of Seller or Seller’s affiliates to Buyer or Buyer’s affiliates, including direct and indirect losses, costs and damages resulting from Seller’s failure to timely deliver Ordered Items, the failure of any Ordered Items to conform to applicable warranties or other breach by Seller of these Terms or any other agreement with Buyer or Buyer’s affiliates, Buyer may at any time and regardless of whether there is any connection between the obligations giving rise to the amounts due, as applicable, recover, recoup or setoff such amounts by deducting such amounts from any sums that are, or will become, owing, due or payable to Seller or Seller’s affiliates by Buyer or Buyer’s affiliates under these Terms or any other agreement.
- Force Majeure/Excused Performance. Delay or non-performance of any obligation herein shall be excused if the cause of the delay is a Force Majeure Event. The non-performing party will notify the other party of such delay immediately, but in no event more than ten (10) days thereafter and will use its best efforts to mitigate the non-performance. The term “Force Majeure Event” means an event that is beyond the reasonable control of the party seeking to be excused from performance, is not attributable to such party’s negligence, and could not have been avoided or overcome and includes, but is not limited to acts of God, actions by any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, civil disobedience, insurrections, natural disasters, pandemics or epidemics, acts of terrorism, sabotage, declared or undeclared war or the public enemy. None of the following shall individually, or collectively, constitute a Force Majeure Event: 1) Seller’s ability to sell Ordered Items at a higher price; 2) increases in Seller’s production costs; 3) a strike or other legal or illegal labor disruption, or Seller’s inability to obtain labor; or 4) a significant increase in Seller’s cost of raw materials. If any Force Majeure Event remains uncured for thirty (30) or more days, Buyer may terminate these Terms and any Orders without penalty or liability upon written notice thereof and shall receive a refund of any prepaid, unearned fees paid by Buyer.
- General. Unless Buyer has provided prior written consent, any partial or complete assignment by Seller of right(s) or delegation of obligation(s) hereunder, including, without limitation, subcontracting, shall be void. Notwithstanding any permitted assignment, such assignment shall not relieve Seller of its obligations and liabilities under any contract. Buyer may assign or otherwise transfer some or all of its rights under these Terms to a third
- Affiliates. If affiliates or subsidiaries of the Buyer are buying under these Terms, then such Buyer affiliates or subsidiaries will be severally but not jointly liable for the obligations hereunder and Buyer shall not be liable for any obligations of such affiliates or subsidiaries hereunder.
- Electronic Communications and Electronic Seller shall comply with any method of electronic communication/payment processing specified by Buyer, including electronic funds transfer, pay-on-receipt processes/systems, Order transmission, releases, electronic signature, and electronic communication systems, including, without limitation, the use of electronic data interchange (“EDI”) portals. E-mails, even those containing a signature block of one of Buyer’s representatives shall not constitute a Signed Writing.
- Signatures in Any contract may be executed in counterparts, each of which when executed shall be deemed to be an original, but all together shall constitute but one and the same agreement. A facsimile, e-mail or other electronic copy hereof shall suffice as an original.
- The paragraph and other headings herein are for convenience only and form no part of these Terms.
- If any term is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law (e.g., Section 9.1 for Ordered Items subject to Uniform Commercial Code § 2-306). The remaining provisions of an applicable Order will remain in full force and effect.
- In the event of a conflict in the terms of any Order, or any part of a contract, unless the parties agree otherwise in writing, the various components of the agreements shall be given the following precedence (in descending order of precedence): 1) signed written agreement, if any; 2) an Order; 3) these Terms.
- No Implied Waiver and Amendments. The failure of either party at any time to require performance by the other party of any provision will not affect the right to require performance at any later time, NOR WILL THE WAIVER BY EITHER PARTY OF A BREACH OF A CONTRACT CONSTITUTE A WAIVER OF A LATER BREACH OF SUCH CONTRACT. No amendment to a contract shall be binding unless it is contained on an Order or on a Signed
- Relationship of Parties. Seller, including anyone engaged by it to aid in the performance of its obligations hereunder, and Buyer are independent contracting parties and nothing in this Order shall make either party the agent, employee, partner or legal representative of the other, nor does this contract grant either party any authority to assume or create any obligation on behalf of, or in the name of, the
- Use of Name. When requested by Buyer in writing, Seller shall label the Ordered Items with Buyer’s name, logo, domain name, trademark and/or other proprietary designation (“Designation”) as specifically designated by Buyer. Seller shall not sell or otherwise transfer Ordered Items with Buyer’s Designation to any person or entity other than Buyer. Except as provided in this section, Seller shall not use Buyer’s Designations for any purpose, including but not limited to advertising and press releases, without prior written approval in each instance of Buyer’s corporate communications department.
- Language. While the terms may be printed in more than one language for the convenience of the parties, the English language version is the controlling version.
- Survival. The provisions of Sections 1.3, 4-12, and 14 through 32, and any defined terms used in the foregoing shall survive termination of these Terms.