These Purchase Order Terms and Conditions and Order (collectively “Agreement”) apply in respect of an agreement between the Vomela entity set forth in the Order (“Buyer”) and the Seller (as defined below) in relation to a purchase order or a work statement and are in addition to the terms and conditions in the Order (as defined below). Except for the terms and conditions in the Order which are controlling, the terms and conditions under this Agreement are binding between the Buyer and Seller and supersede scope. Any amendment or modification of this Agreement shall not become binding unless agreed upon in writing in the Order between the parties governing the individual transactions covered by this Agreement. Unless expressly stipulated under this Agreement or required under applicable law, the Buyer expressly rejects any incorporation attempt by the Seller of any other terms and conditions, whether from the Seller or from what is common industry practice, and whether such attempt is made in relation to offering, correspondence, website, order acceptance, counter party compliance inquiries, invoicing or other means.
“Affiliates” means, with reference to a party, any company or other legal entity which: (i) controls either directly or indirectly, a Party; or (ii) is controlled, directly or indirectly, by a party; or (iii) is directly or indirectly controlled by a company or entity which directly or indirectly controls a party. For these purposes, “control” means the right to exercise more than fifty percent (50%) of the voting or similar right of ownership; but only for so long as such control shall continue to exist.
“Goods” means the goods, materials, hardware, products being purchased or to be supplied as specified in the order.
“Intellectual Property” (IP) means all patents, rights to, copyright and related rights, trademarks, rights in confidential information and any other intellectual property rights, in each case whether registered or unregistered in any part of the world.
“Order” means the purchase order or work statement, form or quote under which an order is placed by Buyer to Seller covering the Agreement in relation to the supply of Goods by the Seller.
“Sales Tax” means any sales, use, service, value added, goods and services, consumption, cess or duties or other similar taxes or duties in any country which are chargeable on any sum payable in connection with the purchase of the Goods.
“Seller” means any person or company having a contract for the supply of Goods to the Buyer as identified in the Order.
“Services” means any services provided by Seller to Buyer
2.1 The Seller warrants that the Goods & Services correspond with the description in the Order and any applicable specifications; are new (unless otherwise indicated in the Order), of good and merchantable quality and fit for any purpose held out by the Seller or made known to the Seller by the Buyer expressly or by implication, and in this respect the Buyer relies on the Seller’s skill and judgement.
2.2 The Seller warrants that it sells the Goods to the Buyer free from all liens and encumbrances and with full title guarantee (unless otherwise expressly stated in the Order).
2.3 The Seller warrants that the Goods & Services provided to the Buyer do not and will not give rise to any infringement or misappropriation of any Intellectual Property right of any third party.
2.4 The Seller shall be responsible for ensuring all inspections and testing of the Goods is properly and adequately performed. The Goods shall be subject to final inspection and acceptance or rejection by the Buyer upon arrival at their destination as specified in the Order. If following inspection or testing the Buyer considers that the Goods do not conform or are unlikely to comply with the Seller’s obligations under this clause 2, the Buyer shall inform the Seller and the Seller shall immediately take the necessary remedial action to ensure compliance.
2.5 The Seller shall ensure that the Goods are properly packed and secured in such a manner as to enable them to reach their destination in good condition and the Seller shall deliver the Goods to the Buyer during the Buyer’s usual business hours or those otherwise agreed with the Buyer.
2.6 The Seller warrants that it will comply with applicable laws and regulations in supplying the Goods, including without limitation all import, export, environmental and data privacy laws and regulations; and (iii) any Goods or data sent to Buyer shall (a) contain no hidden files; (b) not alter, damage, or erase any data or computer programs without control of a person operating the computing equipment on which it resides; (c) contain no key, node lock, time-out, scrambling device, or other function, whether implemented by electronic, mechanical or other means, which restricts or may restrict use or access to any programs or data; and (d) not contain harmful code.
2.7 Any third-party products sold by the Seller may carry their own warranties and Seller shall pass through to Buyer any and all such warranties to the fullest extent. Exercise of such warranty shall be directly between Seller and the third-party provider.
2.8 In the event any maintenance services are provided as part of a combined offering with the purchase of the Good, Seller warrants that it will perform each maintenance service using reasonable care and skill and according to its current description (including any completion criteria) contained in this Agreement. Seller further warrants that the maintenance services shall not give rise to any infringement or misappropriation of any intellectual property right of any third party.
This warranty clause is in addition to and not to the exclusion of any warranty or service guarantee stated in the Order, offered by the Seller or implied or required by applicable law.
2.9 Seller will, when on Buyer’s premises or at Buyer’s direction on the premises of others, follow all safety, security and other requirements adopted for those premises (including any applicable drug and alcohol policy). Should Seller need access to the property of Buyer in order to perform the Work, in consideration of being permitted upon the property of Buyer, where Seller may be exposed to industrial activities, and to areas which otherwise may pose a risk of injury to person and property, Seller, for itself, and any other legal or personal representative to the maximum extent allowed by law, releases, waives, and discharges Buyer, its agents and employees from all liability to Seller, for any and all loss or damage on account of injury to Seller’s, or any of its subcontractors’, personnel, employees, agents, representatives or their property, while Seller or such persons are on, about or away from the property of Buyer performing Work for Buyer. Seller hereby assumes full responsibility to the maximum extent allowed by law for the risk of personal injury, death, or property damage due to any conditions of the property of Buyer while Seller is on the property of Buyer performing Work or performing Work for Buyer outside of Buyer’s property.
2.10 With regard to chemical substances or mixtures supplied hereunder, Seller represents and warrants that: (a) it will promptly supply Buyer with material safety data sheets with respect to chemical substances, and will promptly advise Buyer of any specification changes; (b) unless exempt, all chemical substances are included in the Toxic Substances Control Act (“TSCA”) (15 U.S.C. 2601 et seq.) inventory list, and if applicable the European Inventory of Existing Commercial Chemical Substances (EINECS) or the European List of Notified Chemical Substances (ELINCS); (c) Seller has informed Buyer of any TSCA restriction governing the use of said chemical substance, including, but not limited to, proposed or final significant new use rule (SNUR) restrictions; and (d) Seller will continue to provide Buyer with an updated MSDS for at least 12 months after Buyer has ceased purchasing said chemical substance.
2.11 All Products supplied by Seller to Buyer that contain cassiterite, columbite-tantalite (coltan), wolframite and their derivatives (including tin, tantalum and tungsten) and gold are only from sources that are not known by Seller after due inquiry to directly or indirectly finance or benefit armed groups or conflict, including in the Democratic Republic of the Congo or any adjoining country. In addition, Seller agrees (a) to maintain, record and provide to Buyer on request, traceability data and other information that Buyer may request in order to facilitate compliance with the U.S. Conflict Minerals Rule and any other similar law, rule or regulation adopted in the future, (b) to comply with Buyer’s Policy Statement on Conflict Minerals, which is available at www.ecolab.com, (c) to adopt and maintain polices, due diligence frameworks and management systems that enable Buyer to comply with its obligations under the Conflict Minerals Rule and any other similar law, rule or regulation adopted in the future, including policies, frameworks and systems as contemplated by the Organization for Economic Co-operation and Development’s Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas, and (d) that Buyer shall retain the right to conduct audits of Seller to evaluate Seller’s compliance with Buyer’s standards, policies and procedures regarding conflict minerals.
3.1 To the extent that the benefit of any warranties made by the manufacturer or previous seller of the Goods to the Seller can be assigned to the Buyer, the Seller shall assign them to the Buyer.
3.2 Until such assignment, the Seller will co-operate with the Buyer in any reasonable arrangements to provide the Buyer with the benefit of such warranties or like condition including enforcement at the cost of and for the benefit of the Buyer.
4.1 Time is of the essence for the Order. The time stipulated for delivery of the Goods or Services shall be strictly adhered to. If the Goods or Services are not delivered on time, or do not comply with the undertakings set out in clause 2, then without limiting any of its other rights or remedies, and whether or not it has accepted the Goods or Services, the Buyer may exercise any one or more of the following remedies:
(a) cancel the Order without any penalty to the Buyer;
(b) to reject the Goods or Services (in whole or in part) and return the Goods to the Seller at the Seller’s own expense;
(c) to require the Seller to repair or replace the rejected Goods, or to provide a full refund of the price of the rejected Goods (if paid);
(d) claim damages for any additional costs incurred by the Buyer which are attributable to The Seller’s failure to deliver the Goods or Services on the due date;
(e) to request the seller to rework or redeliver the rejected Services, or to provide a full refund of the price of the reject Services (if paid);
4.2 The Seller must collect rejected Goods within a reasonable period after notification of rejection. All Goods must be packed, marked and transported as specified in the Order, and if not specified, in a proper and suitable manner, consistent with industry practice.
4.3 Seller shall be responsible for ensuring all inspections and testing of the Goods are properly and adequately performed. The Goods shall be subject to final inspection and acceptance or rejection by the Buyer upon arrival at their destination as specified in the Order.
4.4 Any Services shall be subject to written acceptance by the Buyer at its sole discretion. Any Services not accepted by the Buyer should be rectified by the Seller at no additional cost within 14 calendar days of notification by the Buyer of the matter.
4.5 In the event the Goods or Services delivered by the Seller do not conform with the Order whether by reason of not being of the quality or in the quantity or measurement stipulated or being unfit for the purpose they are required, the Buyer shall have the right to reject such goods and services within a reasonable time of their delivery and inspection and to purchase the Goods & Services elsewhere and to claim for any additional expense incurred without prejudice to any other right which Buyer may have against Seller. As provided in 4 above, any prior payments made by Buyer shall not prejudice the Buyer’s right of rejection. Acceptance of any part of the Order shall not bind Buyer to accept future shipments of non-conforming Goods or Services, nor deprive it of the right to return or reject non-conforming Goods and Services. At Buyer’s option, it may cancel the Order for rejected Goods and Services, obtain a refund, or require Seller to repair or replace such Goods and Services without charge and in a timely manner. Seller shall be liable for all costs incurred by Buyer to return or reject Goods & Services.
5.1 Seller will not charge Buyer miscellaneous fees including (but not limited to) handling, packing, crating, drayage, storage, and restocking without Buyer’s prior written consent.
5.2 Buyer payment terms are 2/20 net 50 days, after receiving and approval of invoice. All local, state and federal excise, sales or use taxes, when applicable, shall be stated separately on Seller’s invoices. Seller shall be solely responsible for the payment of all local, state, and federal excises, sales or use taxes. Seller shall show all applicable cash discounts on all invoices. Seller agrees that the period of time during which a cash discount will be available to Buyer will be computed from the date that Buyer receives the goods purchased or the invoice for the goods, whichever is later. Title to the Work shall pass upon delivery to and acceptance by Buyer. Seller acknowledges that Buyer deploys an electronic system for ordering all goods and services from its Sellers. In order to supply goods or services to Buyer, Seller agrees to cooperate with Buyer and to accept payment through such system. Each Party is responsible for its own costs associated with meeting the above requirement.
5.3 Buyer reserves the right to charge Seller US$250 for each order processing and fulfillment error resulting from the fault of the Seller. Examples of order processing and fulfillment errors includes but are not limited to invoice mismatches and failure to comply with purchaser order requirements.
5.4 Buyer shall have no obligation to pay any invoice/billing statement issued more than ninety (90) calendar days after delivery of all of the Goods or Services stated in the Order.
The Buyer reserves the right at any time to make changes to the Order or any part thereof upon written notice to the Seller. No change to or modification of the items, specifications, terms, conditions and prices appearing on the Order shall be binding upon the Buyer unless expressly agreed to in writing by the Seller and the Buyer.
Property or title to and risk in the Goods shall remain with the Seller until they are delivered at the point specified in the Order and accepted by the Buyer by signing a delivery order. Passing of property or title to the Goods shall not affect the right to reject the Goods.
8.1 The Seller shall keep the Buyer indemnified against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Buyer as a result of or in connection with any claim made against the Buyer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the supply or use of the Goods & Services, to the extent that the claim is attributable to the acts or omissions of the Seller, its employees, agents or subcontractors.
8.2 To the extent permitted by applicable law, in no event will the Buyer be liable for any lost revenues, lost profits, goodwill, or anticipated savings, incidental, indirect, consequential, special (including nominal and exemplary damages), moral or punitive damages. In no event shall the Buyer’s liability to the Seller exceed the total amount of fees actually paid by the Buyer to the Seller hereunder except in the case of fraud or willful misconduct, personal injury or death.
8.3 Seller agrees to indemnify and hold Buyer harmless from any deficiency (including penalties and interest) relating to any taxes or government levy, including but not limited to Sales Tax, which, by law, are the responsibility of Seller and to reimburse Buyer for all accounting and counsel fees and expenses incurred in connection with an assessment of such a deficiency.
8.4 This clause shall survive termination of this Agreement.
Seller will maintain the following insurance (with carriers rated at least A- VIII by A.M. Best) in amounts that meet generally accepted industry standards or applicable laws: Workers Compensation and Employer’s Liability Insurance; Commercial General Liability Insurance; for any automobile used in the provision of the Deliverables, Automobile Liability Insurance; if applicable, Commercial Blanket Bond or equivalent insurance; if applicable, Technology Errors and Omissions, Media Error and Omissions, or Similar Professional Liability Insurance; if Seller has access to Confidential Information, Privacy and Network Security Insurance (i.e., Cyber Liability); and if Seller transports the property of Buyer, All Risk Motor Truck Cargo Insurance or All Risk Transit and Premises Insurance. Seller’s Commercial General Liability Insurance and Privacy and Network Security Insurance will include the Seller as additional insureds or provide an indemnity to principals clause, and will be primary, and all insurance carried by Seller is strictly excess and non-contributory with Seller’s insurance. Seller will, on request, provide Seller with certificates of insurance.
Seller will abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), if applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that Seller takes affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
Pursuant to United States Presidential Executive Order 13224 and related regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury, U.S. persons and entities are prohibited from transacting business with persons or entities who, from time to time are determined to have committed, or to pose a risk of committing or supporting, terrorist acts, narcotics trafficking, money laundering and related crimes. Those persons and entities are identified on a list of Specially Designated Nationals and Blocked Persons (the “List”), published and regulated by OFAC. The names, including aliases, of these persons or entities (“Blocked Persons”) are updated frequently. Seller hereby represents and warrants that it is in full compliance with the U.S. Patriot Act and that neither Seller nor any of its affiliates or subcontractors nor any of their affiliates, shareholders, employees, officers or directors has been designated as a “specifically designated national and blocked person” on the most current List published by OFAC at its official website, http://www.treas.gov/ofac/downloads/t11sdn.pdf, or at any replacement website or other replacement official publication of such list, and Seller and its affiliates and subcontractors are currently in compliance with and will at all times during the term of this Agreement (including any extension thereof) remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury and any related statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other similar governmental action relating thereto. Neither Seller nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders, is directly or indirectly owned or controlled by the government of any country or person that is subject to an embargo or economic or trade sanctions by the United States government, and neither Seller nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is acting on behalf of a government or person of any country that is subject to such an embargo, and neither Seller nor any of its affiliates, subsidiaries, respective shareholders, beneficial owners of non-publicly traded shareholders is involved in business arrangements or otherwise engaged in transactions with countries or persons subject to economic or trade sanctions imposed by the United States government in violation of such sanctions. Seller agrees that it will notify Buyer in writing immediately upon the occurrence of any event which would render the covenants, representations and warranties herein incorrect.
12.1 Without limiting its other rights or remedies, either party may terminate the Agreement with immediate effect by giving written notice if either party commits a material breach of any term of the Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so.
12.2 Buyer may terminate the Services under this Order by giving not less than thirty (30) calendar day’s prior written notice to the Seller. Upon termination, Buyer has no further liability or obligation to Seller except to pay for fees for Services and expenses incurred pursuant to any applicable Order up to the effective date of termination. In the case of fixed price Order, Seller shall only be liable to pay a pro-rate sum in respect of the work undertaken as at the effective date of termination.
12.3 Termination of the Agreement, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
12.4 Any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
13.1 Each party undertakes that it shall not at any time and for a period of seven years after termination of this Agreement, disclose to any person any confidential information concerning this Agreement, Order, business, affairs, customers, clients or Sellers of the other party or of any member of the group of companies to which the other party belongs.
13.2 Where personal data is shared by either party, the receiving party shall comply with applicable data protection laws.
13.3 No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
The Seller will not assign its rights or subcontract its duties without the Buyer’s written consent. Any unauthorized assignment is void. The Buyer may assign its rights to an Affiliates without prior written consent from the Seller.
A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:
(a) waive that or any other right or remedy; or
(b) prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
All notices to be given hereunder shall be in writing and shall be deemed to be given when mailed by certified or registered mail, or personal delivery, to the addresses of the parties specified in this Order unless either party shall specify to the other party a different address for the giving of such notice.
The terms and conditions set out herein apply to the Agreement between the Buyer and the Seller to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. For the avoidance of doubt, any Seller pre-printed terms and conditions produced, signed or stamped by either the Seller or the Client and for whatever purpose during the currency of this Agreement are hereby disallowed.
With the exception of the Buyer’s Affiliates, No one other than a party to this Agreement shall have any right to enforce any of its terms.
20.1 This Agreement shall be exclusively governed by the exclusive laws of and all disputes relating to this Agreement shall be resolved exclusively in the State of Minnesota, USA.
20.2 All related disputes shall be resolved similarly under the corresponding state of the applicable law.
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