PURCHASE ORDER TERMS & CONDITIONS
1. ACCEPTANCE: The terms and conditions govern the purchase order (including any attachments provided in connection therewith, the "PO") that has been transmitted (via facsimile, e-mail or other means) to you ("Supplier") by Mast- Jägermeister, US, Inc., ("MJUS") or one of its affiliates identified in the PO ("Buyer"). Notwithstanding any prior dealings between Buyer and Supplier, the PO is expressly made conditional on, and Buyer expressly limits Supplier's provision of any goods or services set forth in the PO to, the terms and conditions in the Agreement (as defined below).
By accepting the PO and/or starting performance, shipping any goods or furnishing any services (or providing any deliverable arising therefrom) in connection with the PO, Supplier acknowledges that Supplier has read, understands, and agrees to be bound by the terms and conditions set forth in the Agreement. If Supplier objects to any such terms and conditions, Supplier shall (a) notify Buyer in writing within three days after its receipt of the PO and (b) withhold acceptance of the PO and not start any performance, ship any goods or furnish any services (or provide any deliverable arising therefrom) in connection with the PO until/unless such objection is settled in writing signed by Buyer and Supplier.
2. CANCELLATION: Buyer may cancel the PO at any time and for any reason upon written notice to Supplier. In the event of such cancellation, Supplier shall comply with any directions given by Buyer in such notice with respect to the goods and services in the PO and cease all other shipment and delivery of goods and services with respect to the PO. Within 45 days from the effective date of such cancellation, Supplier shall provide to Buyer all material, drawings, work-in-progress and co-developed intellectual property (in the state of completion or non-completion in which they exist on the date of cancellation) and submit an invoice to Buyer for all goods and services provided by Supplier and accepted by Buyer in accordance with the PO prior to cancellation, but only to the extent relating to such goods or services for which Supplier has not already submitted an invoice to Buyer. Buyer agrees to pay all undisputed amounts in accordance with the PO and these terms and conditions. In no event shall Buyer be responsible for any amounts in the aggregate greater than (a) the total that would have been due under the PO or (b) the value of the work done by Supplier in accordance with the PO prior to cancellations, whichever is less.
3. CONFIDENTIALITY; NO PUBLICITY: (a) Supplier shall not, without the prior written consent of Buyer, originate any publicity (including any news release or public announcement) nor use any logos, trademarks, service marks or names of Buyer or any of its affiliates.
(b) Supplier shall not, without the prior written consent of Buyer, disclose to any third-party Confidential Information (as defined below) or use any such Confidential Information for any purpose other than in connection with providing to Buyer the goods and/or services set forth in the PO. "Confidential Information" shall mean any information that is not already in the public domain or independently developed or obtained by Supplier relating to the following: the existence of the relationship with Buyer; Buyer’s purchasing systems or practices (including, without limitation, descriptions of purchased items, quantities purchased and prices paid); the nature of the services performed or deliverables or goods delivered under the PO; or any data, designs or any other information relating to Buyer or its affiliates or their businesses, including the Buyer Provided Materials (as defined below). Notwithstanding the foregoing, Supplier may disclose Confidential Information (i) to Supplier’s employees having a need to know such information in connection with Supplier's performance of the PO or (ii) to comply with applicable laws, court orders or government regulations, provided, in such case Supplier promptly provides notice thereof to Buyer prior to any disclosure to allow Buyer to comment thereon and to seek a protective order or similar relief. Supplier agrees that it will take appropriate action by instruction, agreement or otherwise with its employees who are permitted access to Confidential Information to notify them of the obligations hereunder. No right, title, interest or license to Supplier is either granted or implied under any trademark, patent, copyright or any other intellectual property right by the disclosure of the Confidential Information hereunder. Upon Buyer’s request at any time, all documents and other material containing Confidential Information, and any other data, designs, or other information furnished to Supplier (and copies thereof), shall be returned to Buyer or destroyed, as directed by Buyer.
4. WARRANTY: Supplier warrants that all Products and Services supplied to MJUS by Supplier shall conform to the specifications, drawings or other description upon which this Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects, and in compliance with all applicable laws and regulations. Inspection, testing, acceptance or use of the Products by MJUS shall not affect Supplier's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Supplier agrees to replace or correct promptly defects of any Products or Services not conforming to the foregoing warranty without expense to MJUS. In the event of Supplier's failure to correct defects in or replace non-conforming Products or Services promptly, MJUS may, after reasonable notice to Supplier, make such corrections or effect cover at Supplier's expense.
5. GOVERNMENT CONTRACTING; PRICING: Supplier represents that the price it is charging is not in excess of the ceiling prices, if any, established by any government agency. If Supplier is notified that the services or goods covered by the PO are ordered by Buyer under a United States government contract, Supplier agrees that federal statutes and regulations applicable to Buyer as a government contractor are accepted and binding on Supplier insofar as required by statute, regulation or the provisions of the government contract.
6. TAXES: MJUS will not be liable for any taxes with respect to an Order, except for documented sales, use, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the Products or Services Supplier provides to MJUS which Supplier is required by law to collect from MJUS. MJUS shall not be liable for any taxes if MJUS has provided a tax exemption certificate. MJUS will be entitled to deduct withholding taxes required by law from the amount of such fees. Supplier shall act as an independent contractor in the performance of its services hereunder.
7. INVOICES: Supplier agrees to issue invoices referencing the Order number, description and quantity of items, unit prices, total due and ship to address. Taxes, if any, that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority. All invoices are payable by MJUS within 30 days of receipt and shall be mailed to MJUS at 10 Bank Street, Suite 900, White Plains, NY 10606 or emailed to jagermeister_invoice@concursolutions.com.
8. FORCE MAJEURE: Supplier and Buyer, as the case may be, shall be excused for delays in performance or failure of performance to the extent arising from causes beyond such party’s reasonable control, including without limitation strikes, wars, fires, acts of terror or acts of God, such as floods and earthquakes. In the event of any such event or condition, the party whose performance is excused hereunder shall notify the other party promptly thereof and shall make diligent efforts to perform at its earliest opportunity. If Supplier’s performance is excused hereunder, Buyer may cancel the PO and Supplier agrees to provide to Buyer the assistance and information necessary for Buyer to make, have made, or otherwise procure replacement goods and services.
9. INTELLECTUAL PROPERTY: MJUS is the owner and/or exclusive licensee of certain trademarks (“Marks”) related to its business. Each and every part of the Marks (including the design and appearance of any Products which bear any of the Marks) are, and shall remain, the sole property of MJUS (or the owner thereof if such Marks are licensed to MJUS). Supplier, for itself and its affiliates, agrees that it will not infringe or misuse the Marks; contest or attack MJUS’s rights in the Marks; or file any application for any trademark, or obtain or attempt to obtain ownership of any trademark, in any country of the world, which refers to any of the Marks. Supplier’s right to manufacture any Products bearing any of the Marks shall extend only as set forth in the Order and is subject to the Contract Terms. Supplier may not sell any Products or other goods bearing any of the Marks to any person or entity except MJUS. MJUS may terminate Supplier’s right to manufacture any Products bearing any of the Marks at any time for any reason. Supplier will inform MJUS if any Products or its components are subject to patent protection by Supplier or any third party, and shall release, indemnify and hold MJUS harmless for any claims arising from Supplier’s failure to provide such notice. Supplier agrees that all qualifying works created by Supplier on behalf of MJUS (the "Work"), if any, shall each be considered works made for hire. Supplier acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) shall be the sole and exclusive property of MJUS. If for any reason the Work would not be considered a work made for hire, Supplier does hereby sell, assign, and transfer to MJUS, its successors, and assigns, the entire right, title, and interest in and to the copyright in the Work and all associated proprietary rights. Supplier agrees to execute all papers and to perform such other acts as necessary to secure for MJUS the rights described herein. Supplier shall not contest, dispute, or otherwise object to MJUS’s rights described herein. Except for any materials contributed to the Work by MJUS, Supplier warrants that it is the sole developer of the Work and has full power to make this agreement, and that the Work or any Product or other goods or services does not infringe any patent, trademark, copyright or violate any other intellectual or proprietary rights of third parties.
10. INDEMNITY: Supplier agrees to indemnify and hold harmless Buyer, its affiliates (and its and their respective directors, personnel and agents) against any and all losses, claims, liabilities, damages and expenses, including without limitation reasonable attorney’s fees, (collectively, "Claims") in connection with or arising out of the following: (a) any negligent or willful misconduct of Supplier, its personnel, agents, consultants or subcontractors; or (ii) Supplier’s (including its personnel, agents, consultants or subcontractors) breach of any provision of the PO or these terms and conditions.
11. INSURANCE/INDEPENDENT SUPPLIERS: Supplier shall furnish MJUS with certificates of insurance from companies meeting an A.M. Best rating of at least A XV showing that Supplier is covered by commercial general liability insurance and products liability insurance with limits of not less than $2,000,000 per occurrence of bodily injury and $1,000,000 per occurrence of property damage, as well as suitable workers compensation insurance. These insurance policies shall name MJUS as an additional insured party and shall be primary and non-contributory to any insurance available or maintained by MJUS. Additional insurance requirements may apply as determined by MJUS. No exceptions to these coverages may be made unless approved in writing by MJUS. Failure to provide such a certificate shall not constitute a waiver of this requirement.
12. LIMITATION OF LIABILITY: LIMITATION OF LIABILITY: IN NO EVENT WILL MJUS BE LIABLE TO SUPPLIER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER, OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
13. CHANGES: All Products and Services furnished pursuant to this Order shall strictly conform to the specifications, directions, instructions, designs, descriptions and warranties set forth herein. MJUS reserves the right to make changes in drawings, designs, specifications, scope of work to be performed, time and place of delivery and method of transportation. If such change is to be made, it will be evidenced in writing by MJUS in the form of a revised Order (“Change Order”). Supplier may not make any changes without MJUS's written Change Order acknowledging the change.
14. PACKAGING: Unless otherwise specified, the Products Supplier sells to MJUS shall be (a) packed, marked, and otherwise prepared for shipment in a manner which is in accordance with good commercial practice; (b) acceptable to common carriers for shipment at the lowest rate for the particular Products and in accordance with applicable regulations; and (c) adequate to insure safe arrival at the named destination. Supplier agrees to mark all containers with necessary lifting, handling, and shipping information as well as applicable order numbers, date, or dates. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the Products shipped
15. RISK OF LOSS: Regardless of the method of shipment used, Supplier agrees to deliver all Products specified on the Order to the location(s) specified at Supplier's own risk. Supplier shall bear the risk of loss, destruction or damage until the items are delivered to the f.o.b. point specified by MJUS, except as provided in Section 17 hereof.
16. NON-CONFORMING GOODS OR SERVICES; LATE DELIVERY: Non-Conforming Goods or Services; Late Delivery; Replacement Personnel. (a) Buyer reserves the right to refuse any goods or services and to cancel all or any part of the PO if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to any applicable industry standards or practices, any applicable specifications, drawings, samples, descriptions or any other similar criteria in the PO or otherwise provided to Supplier by Buyer (the "Specifications") or any terms and conditions set forth in the PO and herein. Acceptance of any part of the shipment of goods or any part of the services shall not bind Buyer to accept any non-conforming goods or non-conforming services simultaneously provided by Supplier, nor deprive Buyer of the right to reject any previous or future non-conforming goods or services. Buyer may, if it rejects any non-conforming goods, return such goods to Supplier at Supplier’s expense for transportation both ways, and Supplier shall not deliver to Buyer any replacement or substitution goods for such rejected goods unless so authorized by Buyer.
(b) The delivery of goods and services shall strictly comply with the delivery date or delivery schedule, if any, provided to Supplier by Buyer. If at any time it appears Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Buyer in writing of reasons for, and the estimated duration of, the delay. If requested by Buyer, Supplier shall ship such delayed goods by means to avoid or minimize delay to the maximum extent possible, including rerouting any shipment if appropriate and the use of a dedicated motor carrier or air freight, and any added costs shall be borne by Supplier.
(c) Notwithstanding the foregoing, Buyer may cancel the PO and seek any other remedies available in accordance with applicable law, including cover and incidental and consequential damages from Supplier if Supplier does not, or goods or services provided by Supplier to Buyer do not, conform to the PO and these terms and conditions, including delivery of goods or services that do not strictly comply with the Specifications or the delivery date or schedule, if any, provided to Supplier by Buyer.
17. INSPECTION: All goods and deliverables are subject to final review, inspection and acceptance by Buyer notwithstanding any payment or initial inspection. Final inspection will be made by Buyer within a reasonable time after receipt of goods or deliverables.
18. ASSIGNMENTS: Supplier may not assign, subcontract, or transfer this Order without MJUS's prior written approval. All claims for monies due or to become due from MJUS shall be subject to deduction by MJUS for any setoff or counterclaim arising out of this or any other Orders with Supplier whether such setoff or counterclaim arise before or after such permitted assignment or subcontract by Supplier.
19. PREMIUM TRANSPORTATION: If it becomes necessary for Supplier to ship by a more expensive mode than specified on the face of this Order in order to meet a schedule, Supplier shall pay any resulting premium transportation cost unless Supplier can establish to MJUS's satisfaction that the necessity for the change in routing is occasioned by force majeure events.
20. EXPORT/IMPORT: Any export credits belong to MJUS, and Supplier shall furnish all documents required for international shipments, and upon request, all documents required by MJUS to obtain export credits and customs drawback and remission. Supplier shall include a priced invoice with the master packing slip for international shipments. Upon MJUS's request, Supplier shall furnish certificates that identify the country of origin of the materials used in the Products MJUS purchase from Supplier and the value added thereto in each country.
21. COMPLIANCE WITH LAWS: Supplier warrants that it holds all permits, licenses and other authorizations in compliance with and shall abide by all applicable laws and regulations of the United States of America and the country of its domicile. Supplier warrants that all Products and Services comply with all laws, regulations, orders and other requirements applicable in any jurisdiction: (a) in which any such Products are manufactured; (b) through or to which any such Products are transported or delivered; and (c) in which any such Services are provided. Supplier warrants that all Products and Services comply with all laws, regulations, orders or requirements of the United States and any other applicable jurisdiction (including individual states and local requirements) that apply to any such Products and Services. Supplier further warrants that all Products and substances contained therein comply with all hazardous substance and consumer product health and safety laws, regulations and requirements of the United States and any other applicable jurisdiction, including, but not limited to all U.S. Food and Drug Administration, U.S. Consumer Products Safety Commission and other U.S. federal and individual state standards. Supplier warrants that there has been no intentional addition of any toxic materials during the manufacturing process or otherwise to any materials or Products that Supplier sells to MJUS.
Supplier will provide Material Safety Data Sheets as required by MJUS.
22. GOVERNING LAW/SUBMISSION TO JURISTICTION: This Order and all relations between the parties shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America. Supplier consents to the exclusive jurisdiction of the U.S. District Court for the Southern District of New York and of any of the courts of the State of New York in any dispute arising between the parties and submits to the personal jurisdiction of such courts. All documents exchanged between the parties, shall be in English. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
23. ENTIRE AGREEMENT: This Order shall constitute the entire agreement between Supplier and MJUS and shall incorporate by reference the Corporate Compliance Guidelines letter between the parties (if any). In the event any of the terms and provisions of this Order are in violation of, or prohibited by, any applicable law or regulation, such terms and provisions shall be deemed as amended or deleted to conform to such law or regulation without invalidating or amending or deleting any of the other terms or conditions of this Order.