Purchase Order Standard Terms and Conditions
Cadrex, LLC is referred to as "Buyer" and the Seller, identified on the face of this Purchase Order (the “Order”) is referred to as "Seller". These Purchase Order Standard Terms and Conditions (“Terms”) are attached to and provide and govern the terms and conditions applicable to the Buyer and Seller related to the goods and materials (collectively the “Goods”) identified on the Order. To the extent that the applicable Order identifies an affiliate of Cadrex, LLC as the Buyer, the Buyer for purposes of the Order and these terms shall be the applicable affiliate or Cadrex, LLC identified on the Order.
1. DELIVERY AND ACCEPTANCE.
The time of delivery stated on the Order is of the essence. The date specified for delivery on the Order is the required delivery date that the Seller must have the Goods properly delivered to the Buyer location identified on the Order. All Goods delivered shall be in accordance with these Terms and all specifications attached to, provided in or referenced in the Order (or attached to or referenced in the Sellers quote document, such as the Buyer provided drawing) and in no way limiting the foregoing, in all circumstances complying with no less than industry standards for quality, design, manufacturing, performance and workmanship (collectively the “Specifications”), unless specifically noted otherwise on the Order. Buyer reserves the right to refuse any Goods and to cancel all or any part of the Order if (i) Seller fails to properly or timely deliver all or any part of any Goods in full compliance with the Specifications and these Terms or (ii) Seller fails to properly and timely perform all or any part of any services identified on the Order or that are required or necessary to ensure Buyer’s ability to fully utilize the Goods, in accordance with these Terms. If Seller's breaches subpart (i) or (ii), Buyer may require Seller to do one or more of any of the following (a) promptly ship (using expedited delivery at Seller’s cost) replacement Goods and/or provide replacement services at Seller’s sole cost, (b) promptly refund to Buyer any amounts that Buyer had prepaid for the Goods and/or services, (c) promptly pay to Buyer any extra amounts that Buyer paid to a third party to provide the replacement Goods and/or services above the cost for such identified on the Order, or (d) pay damages to Buyer equal to the complete cost and any loss and expenses that Buyer incurred based on Sellers breach. Notwithstanding the prior sentence, Buyer’s rights in the prior sentence shall be in addition to any other rights and remedies available to the Buyer under contract, law or in equity. Buyer’s receipt or acceptance of any part of the Goods and/or services shall not bind Buyer to accept future Goods shipments or services nor deprive Buyer of the right to require Seller to retrieve (at Seller’s sole cost) any Goods already accepted and/or paid for and shall not be deemed to be a waiver of Buyer's rights to cancel or require Seller to retrieve (at Seller’s sole cost) all or any Goods because of Seller’s failure to conform to the Order and/or these Terms, or prevent or restrict in any manner Buyer’s right to make a claim for damages, including manufacturing costs, loss of profits, injury to reputation or other special, consequential and incidental damages. Such rights shall be in addition to any other remedies provided hereunder or provided by law, equity or otherwise. Delivery shall not be deemed to be complete until all Goods identified in the Order have been actually received and accepted by Buyer.
2. ACCEPT / MODIFICATION OF TERMS
This Order may be accepted only by Seller's agreement to all of the terms and conditions of the Order and these Terms. Acceptance by the Seller of the Order and these Terms shall be deemed to have occurred upon the earlier of Seller signing the Order, notifying Buyer of acceptance by email or otherwise or performing any part, and any such acceptance shall constitute an unqualified agreement to these Terms, unless otherwise modified in writing by the parties. Acceptance of this Order is limited to the Terms. Any additions, deletions or differences in any terms proposed by Seller are objected to and hereby rejected by Buyer, unless Buyer agrees otherwise in a writing signed by an Officer of Buyer. No additional or different terms and conditions proposed by the Seller in accepting this Order or in any documentation provided by Seller shall be binding upon Buyer unless accepted in a writing signed by an Officer of Buyer. No waiver of any of the provisions herein shall be valid unless made in a writing that is executed by an Officer of Buyer
3. PACKING AND SHIPPING
The Goods must be properly packed, prepared, labeled for shipment, transported and delivered in compliance with the Specifications, including any specific transportation specifications of Buyer identified on the Order or provided to Seller, and in all cases must comply with all applicable laws and regulations. All charges for packing, preparing, crating, labeling and transportation are included in the price of the Goods set forth on the Order and will be paid by Seller, except as otherwise specifically stated on the Order. A packing list shall accompany each box or package shipment showing the Order number, a description of the Goods and any other information requested by Buyer. Buyer shall not be obligated to accept or pay for any Goods shipped in excess of the ordered quantity and any excess or advance shipments may be returned to Seller at Seller's expense. In the event that specific packaging requirements are not identified by the Buyer, Seller shall ensure that all Goods are properly packaged to ensure they are completely protected and secured through all transportation until Seller makes final delivery to Buyer.
Seller shall invoice to receive payments. Invoices shall be emailed to the applicable accounts payable email identified on the applicable Order or if not identified on the Order, the accounts payable email that Buyer provides to Seller and contain the following information: Order number, description of the Goods and quantity of the Goods, prices for each Good/part, packing slip, bill of lading number and any other information reasonably requested by Buyer. Invoices submitted hereunder will be paid by Buyer within sixty (60) days after receipt of the invoice or acceptance of delivered Goods by the Buyer, whichever occurs later, unless otherwise specified on the face of this Order. Invoices shall be submitted to Buyer within ten (10) days of delivery date. Failure to invoice within the given period will jeopardize payment of the invoice. Any adjustment in Seller's invoices due to Seller’s failure to comply with the requirements of the Order and/or Terms may be made by Buyer before payment. Payment shall not constitute final acceptance. Buyer may offset against any payment hereunder any amount owed to Buyer by Seller.
Seller accepts and acknowledges that Buyer will be providing Seller with information, data, know-how and materials (hereinafter collectively “Confidential Information") that Seller must protect from authorized disclosure using no less than industry standard processes and security and only use in accordance with the permitted uses identified herein. Confidential Information shall also include all information, data, know-how and materials related to Buyer’s and its affiliates technology, designs, customers, vendors, strategy, employees, financial results, computer programs, products, marketing and business plans and any other information or data that should reasonably be assumed by the Seller to be confidential. Confidential Information will not deemed to include information which (a) Seller can show was in Seller’s possession before receipt from Buyer; (b) is or becomes a matter of public knowledge through no fault of Seller; or (c) is rightfully received by Seller from a third party who Seller was not aware, after reasonable inquiry, that the third party had a duty of confidentially to the Buyer. Seller may use the Confidential Information only for the permitted purpose of performing for the Buyer under the Order and agrees to hold the Confidential Information in confidence and not to disclose it to any third party (other than to its employees or agents who are specifically involved in the performance under the Order) without the prior written consent of the Buyer. At any time, upon request by Buyer, Seller shall promptly return or certify the destruction of all copies of the Confidential Information. To the extent that the Buyer and Seller have a non-disclosure or similar agreement in effect at the time of this Order, Seller accepts that any terms and conditions related to Seller’s confidentiality obligations identified in such agreement shall be in addition to Seller’s obligations identified in this Section 5. Seller accepts and acknowledges that Buyer reserves the right to share the pricing of the Goods with Buyer’s customers and other third parties.
(1) that the price charged for the Goods and/or services provided pursuant to this Order shall be no higher than Seller's current price to any other customer for the similar quantity of such Goods or services;
(2) that all Goods delivered pursuant hereto will be new, unless otherwise specified, and free from defects in manufacturing, material and workmanship;
(3) that all Goods will conform to all applicable Specifications and that all Goods will be suitable for their intended purpose;
(4) that the Goods and related services covered by this Order will be provided, produced, packaged, labeled and transported in accordance with all applicable laws and regulations and in compliance with no less than industry standards of performance and Seller accepts and acknowledges that to the extent that any of the Goods are being produced for or provided to a governmental entity to which FAR and/or ITAR rules or regulations apply, Seller shall also comply with all applicable FAR/ITAR rules and regulations in its production and provisioning of the Goods;
(5) that it will be prompt, diligent and responsive to any questions or assistance requested by Buyer;
(6) that the Goods and related services and their use by Buyer or its customers will not infringe upon the rights, including intellectual property rights, of any entity or individual;
(7) that the pricing for any of the Goods identified in any quote or similar document supporting or underlying the Order shall not be increased by the Seller for subsequent Orders that Buyer may choose to submit for the some or all of the same Goods unless the Seller provides the Buyer with at least sixty (60) days advanced written notice of a price increase;
(8) that is will be responsible for the breach of these Terms by any employee, independent contractor or agent it engages; and
(9) that in its performance of each Order and its compliance with these Terms, Seller will comply with all applicable terms of Buyers Supplier Quality Manual and Buyers Supplier Handbook (found at https://www.cadrex.com/suppliers), both of which Buyer reserves the right to update and modify from time to time.
All the representations and warranties of Seller together with any other warranties or guarantees that Seller has provided to Buyer in connection with the Order, if any, shall run to Buyer and Buyer's customers. The foregoing representations and warranties shall survive any inspection or acceptance by Buyer or payment by Buyer and shall continue for a period of thirty six (36) months following Seller’s delivery of the applicable Good(s) to Buyer.
Seller shall satisfy all inspections, tests, quality management systems and quality assurance requirements that are identified in the Specifications and/or these Terms or that are appropriate for Seller to perform or provide according to industry standards to ensure that the Goods conform to the requirements of this Order. If requested, the Seller shall also submit to the Buyer, Seller’s quality manuals, program plans, procedures and inspection and testing results. All Goods supplied and services performed pursuant hereto shall be subject to inspection and test by Buyer and/or its agents and by Buyer’s customers at all times and places, whether during or after manufacture of the Goods. Buyer's approval of designs furnished by Seller shall not relieve Seller of its obligations herein.
8. CHANGES AND SUSPENSION
Buyer may, by written (email is acceptable) notice to Seller at any time before complete delivery of the Goods is made under this Order, make changes within the general scope of this Order in any one or more of the following:
(b) quantity of Goods;
(c) delivery timing;
(d) method of shipment or routing; and
(e) make changes in the amount of Buyer furnished property
Buyer for any reason may direct Seller to suspend, in whole or in part, delivery of Goods or performance of services hereunder to such period of time as may be determined by Buyer to be necessary or desirable. If any such change or suspension causes a material increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, an equitable adjustment shall be made in the Order price or delivery schedule, or both, provided Seller shall have notified Buyer in writing of any claim for such adjustment within two (2) business days from the date of such notice from Buyer. No such adjustment or any other notification of the terms of this Order will be allowed unless authorized by Buyer by means of a written revision to this Order.
Except as may be otherwise provided in this Order, the price(s) set forth herein include all applicable Federal, State and local taxes, duties, customs and tariffs.
In the case of any tools, dies, jigs, fixtures, patterns, equipment or other facilities or property of Buyer or its customers (collectively the “Tooling”) which may be in possession of Seller in connection with this Order, Seller agrees that Seller shall be responsible for any loss or damage thereto which is caused by or as a result of any negligent act or omission on the part of Seller or its agents or employees or breach of these Terms. With respect to such Tooling, Seller will
(a) make no change, modification or alteration thereto without Buyer's written consent;
(b) make no use thereof, except in the production of Goods ordered by Buyer and;
(c) store the same without charge to Buyer in separated racks or in sections of Seller's plant in either case, clearly marked to show that it is the property of Buyer. If Seller acquires tools or manufactures them in connection with the Order and charges Buyer for the use thereof (such charges only to occur if agreed to by Buyer in writing), Buyer may at its option upon the completion or termination of this Order, elect to take title to such Tooling and upon receiving notice of such election, Seller will deliver such Tooling to Buyer.
To the extent that the Order identifies any Tooling purchases by Buyer under the Order, Seller accepts and acknowledges that with respect to such Tooling, Seller shall also comply with the terms and conditions identified on Attachment 1, attached hereto, which then are deemed to become part of these Terms.
11. RESPONSIBILITY FOR PROPERTY
Any Tooling or other Buyer property in the possession or control of Seller or Seller's subcontractors, vendors or agents, shall be promptly (and in no case more than ten days later) returned to Buyer at Seller’s cost in the condition in which it was received by Seller upon request by Buyer and Seller assumes and retains all risk of loss of all such Tooling and property until such Tooling and property is delivered to Buyer.
Sellers agrees to procure policies of insurance during the term of this Order and for one year thereafter that (i) satisfy all legal requirements (including all workers compensation requirements), (ii) comply with all industry standard minimum coverage types and amounts and (iii) satisfy any and all insurance obligations identified to Seller by Buyer prior to Seller’s start of Goods production. Satisfactory evidence of such insurance shall be submitted to Buyer promptly upon request. Seller’s failure to satisfy these Section 12 requirements shall be deemed a material breach of these Terms by Seller.
13. ASSIGNMENT AND SUBCONTRACTS
This Order is not assignable and shall not be assigned by Seller without the prior written consent of Buyer. Further, Seller agrees to obtain Buyer's approval before subcontracting this Order or any substantial portion thereof; provided, however, that this limitation shall not apply to the purchase of standard commercial supplies or raw materials. If all or substantially all of Seller’s assets or equity is being acquired by one or more third parties, Seller shall notify Buyer of such in writing in advance of such acquisition.
14. USE OF DESIGN, DATA, ETC.
Seller agrees that it will keep confidential the features of any equipment tools, gauges, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Buyer and use such items only in the production of Goods under this Order, unless Buyer's written consent is first obtained. Upon completion or termination of this Order, Seller shall promptly return all such items to Buyer or make such other disposition thereof as may be directed or approved by Buyer.
15. RESPONSIBILITY FOR SUPPLIES
Except as otherwise provided in the Order, Seller shall bear the risk of loss of, or damage to, the Goods covered by this Order until delivered to Buyer's facility identified in this Order and accepted by Buyer. Buyer shall have a reasonable time after receipt of Goods to inspect the Goods.
16. NOTICE OF DELAYS
Whenever the Seller has knowledge that any actual or potential delay in the timely performance of this Order, the Seller shall immediately give written notice thereof, including all relevant information with respect thereto, to the Buyer, although such notice shall not limit or extinguish any rights of Buyer under these Terms for such delay.
(a) Buyer may, by written notice of default to Seller, terminate the whole or any part of this Order in any one of the following circumstances:
(i) Seller breaches any term or condition of this Order or the Terms; or
(ii) Seller becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors or admits in writing its inability to pay its debts as they become due.
(b) If this Order is so terminated, Buyer may procure or otherwise obtain, upon such terms and in such manner as Buyer may deem appropriate, supplies, goods or services similar to those terminated. Seller shall be liable to Buyer for any excess costs of such similar supplies, goods or services although such payment by Seller shall not be an exclusive remedy of Buyer.
(c) Seller shall continue performance of this Order to the extent not terminated.
18. RELEASE OF INFORMATION
Seller agrees that prior to the issuance of any publicity or publication of any advertising which in either case makes reference to this Order, or to Buyer, Seller will first obtain the written permission of an officer of Buyer with respect thereto.
Seller shall at its expense indemnify, defend and hold harmless Buyer and its affiliates and their respective officers, directors, employees, agents, successors and assigns (“Buyer Indemnities”) from all claims, liability, loss, damage costs (including reasonable attorneys fees) and expenses including special, consequential and incidental damages incurred or sustained by any Buyer Indemnities by reason of any breach by Seller or any of its employees or agents of these Terms.
20. INTELLECTUAL PROPERTY
Seller agrees that any and all Goods delivered to Buyer hereunder shall be solely owned by Buyer without any liens or encumbrances and Seller agrees that all inventions, improvements or discovery (whether or not patentable) that Seller conceives or first actually reduces to practice in the performance of this Order shall be owned exclusively by Buyer and Seller shall take any action and execute any documentation presented by Buyer to substantiate Buyer’s ownership in such.
21. GOVERNING LAW
This Order and these Terms shall be subject to, and construed in accordance with, the laws of the State of Illinois, without giving effect to the principles of conflict of laws thereof. The parties agree that any and all causes of action, whether or not arising under this Order, between the parties shall be brought exclusively in the state or federal courts located in Illinois and each party hereby waives any objection to the laying of venue of any such litigation in the aforementioned courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in an inconvenient forum. These Terms, shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods.
22. NON-WAIVER OF RIGHTS
The failure of Buyer to insist upon strict performance of any of the terms and conditions in this Order and the Terms or to execute any rights or remedies shall not be construed as a waiver of its rights to assert any of same or rely on any such terms or conditions at any time thereafter. The invalidity in whole or in part of any term or condition of this Order shall not affect the validity of other parts hereof.
Seller agrees to allow Buyer or its agent to audit or examine Seller’s books and records to determine compliance or noncompliance with the applicable Order and these Terms. Any audit or examination will be conducted only by Buyer or its authorized representative/agent and will occur during regular business hours at Seller’s offices (or remotely if requested by Buyer in which case Seller will provide Buyer with copies of all books and records electronically promptly after such request) and will not interfere unreasonably with Seller’s business activities. Examinations or audits will be made no more frequently than twice per calendar year, and Buyer will give ten (10) business days or more prior written (email is acceptable) notice of the date of the examination/audit and the name of entity or individuals who will be conducting the examination/audit. The audit or examination will be conducted at Buyer’s expense unless the results of such examination/audit establish that Seller charged Buyer more than five percent (5%) more than what Buyer should have been charged during the examination/audit period, in which case Seller shall pay, within thirty (30) days, all amounts due and bear the expenses of the examination or audit. Even if the 5% threshold is not met, Seller should still promptly pay to Buyer any overpayments made by Buyer discovered in the examination/audit.
24. ENTIRE AGREEMENT
The parties hereby agree that this Order, including all documents incorporated herein by reference including these Terms, shall constitute the entire agreement and understanding between the parties hereto and shall supersede and replace any and all prior or contemporaneous representations, agreements or understandings of any kind, whether written or oral, relating to the subject matter hereof.
These Terms last updated on February 7, 2024
TOOLING ADDITIONAL TERMS
The following definitions apply to the terms used within this Attachment 1:
"Acceptance" shall mean the procedure of Buyer verifying Sellers conformance with this Attachment 1 and also with the Tooling related terms of the Order and the Terms and the declaration made by Buyer that the Tooling provided by the Seller is in fact in compliance with such.
"Seller Manufacture" shall mean the process of Seller properly producing and subsequently delivering the Tooling to Buyer.
“Buyer Manufacture” shall mean Buyer’s production of its various products using the tooling.
"Sample" shall mean a permanent structure, which is used as a basis for a repetitive component and which serves as a template.
"Product" shall mean any product that is manufactured by Buyer using in whole or in part the Tooling.
"Tooling" shall mean the object of purchase by Buyer from Seller identified on all or some part of the Order relates to Mold Tooling, Injection Mold Tooling or Stamping Tooling and that such Tooling shall be properly planned, developed, designed and manufactured by Seller.
"Cycle time" shall mean the technical production value or performance for each unit of time.
2. OBJECT OF THE TOOLING PURCHASE
2.1 By Buyer identifying Tooling on an Order, Seller shall leverage the direction, description, specifications (including, but not limited to, required Cycle Times) or similar provided by Buyer (collectively “Buyer Specs”) and then (i) perform and provide the planning, development, design, manufacture and delivery of Tooling, (ii) provide the Buyer with all documents, in electronic format, concerning the Tooling and (iii) provide all ancillary services necessary to ensure that the Tooling conforms to the Buyer Specs.
2.2 Buyer will provide the Buyer Specs to Seller by attaching them to the Order or providing them to the Seller by way of email.
3. SCOPE OF SUPPLY
3.1.1 Seller shall mark the Tooling with a reference to the Order (ID code, rating plate, etc.). However, this marking must not in any way convey the impression that the Buyer is the manufacturer of the Tooling.
3.1.2 The Scope of the Order shall also include (unless otherwise specifically stated in the Purchase Order or its Annexes) (i) Seller’s compliance with all applicable laws, rules and regulations in connection with its planning, development, design, manufacture and delivery of Tooling, (ii) Seller providing Buyer with all Tooling related operating, assembly and maintenance instructions, (iii) Seller providing Buyer with a parts list for all Tooling parts, including particular identification of spare parts and wear parts and (iv) Seller providing Buyer with the relevant Tooling drawings and related materials for which Seller shall grant Buyer a royalty free, perpetual, exclusive, transferable, worldwide license to use or otherwise exploit the property rights, including intellectual property rights, contained therein.
3.2 CONTRACTUAL CONFORMITY
3.2.1 The Tooling will be produced by Seller and provided to Buyer in compliance with the Order, Terms and this Attachment 1 and shall (i) satisfy the identified Cycle Times, (ii) meet or exceed the safety requirements identified by Buyer and/or required by applicable law, (iii) be produced using state-of-the-art technology; (iv) meet or exceed all consumer protection and environmental laws and regulations; and (v) be free of any third party claims, including, but not limited to, claims for infringement of any patent, trademark, copyright or other intellectual property or proprietary rights of a third party.
3.2.2 The Seller shall ensure that the Tooling satisfies the identified Cycle Times and any laws and technical standard intended to protect Buyers employees, users and consumers, including, but not limited to Directive 2006/42/EC ("Machinery Directive"), Directive 2006/95/EC ("Low Voltage Directive") and Directive 2004/108/EC "(Electromagnetic Compatibility Directive").
3.3 DESCRIPTION OF FUNCTIONS
Any description of the Tooling is primarily based on its functions (simplified: the Tooling shall be able to produce conforming products) and Seller shall solely be responsible for the design and manufacture the Tooling. Approvals by Buyer shall not release Seller from its obligation to plan, develop, design, manufacture and deliver a Tooling in accordance with the Order and this Attachment A, including the Buyer Specs.
3.4 AMENDMENTS, CLARIFICATIONS AND MODIFICATIONS
3.4.1 If the Buyer Specs are still incomplete at the time of the Order, the parties shall jointly complete the Buyer Specs promptly after the Order.
3.4.2 Once completed, the Buyer Specs shall include, but not be limited to (i) the accurate definition, description and presentation of the possible connection types for the electrical, hydraulic and pneumatic connections between the Tooling and the injection Tooling machine and the accurate definition of all other interfaces between the injection Tooling machine and Tooling and (ii) the definition of any outstanding details of the testing procedures and the test parameters that Seller shall satisfy.
3.4.3 Buyer will be entitled to modify the Buyer Specs by notifying Seller of such in writing (email is acceptable). If any such Buyer Specs modification will cause an increase or decrease in the Tooling price or will have an impact on Seller’s time of performance, or both, Seller shall promptly (and no later than 7 days) notify Buyer of such in writing (email is acceptable) and to the extent that Buyer agrees, a change order will be generated. If Seller fails to so advise Buyer within one (1) week of Seller’s receipt the Buyer Specs modification, Seller shall be deemed to have accepted the modification and shall promptly perform to the modified Buyer Specs with no corresponding change in price or time of performance.
4. PRICES AND TERMS OF PAYMENT
Except as expressly otherwise agreed by Buyer in writing, the price of all Tooling shall be considered inclusive of all duties, customs, incidental expenses, tool shipment preparation, packaging and transportation and any other expenses of the Seller.
4.2 Payment Offset
4.2.1 Buyer shall have the right to deduct from any amounts otherwise payable to Seller under an Order, the damages or costs incurred by Buyer related to Seller’s failure to properly and timely perform any of its Tooling related obligations.
5. MILESTONES AND DEADLINES
5.1.1 The Order or Order attachments will identify the Tooling milestones and final deadlines that Seller must comply with.
5.1.2 Time is of the essence; Seller shall strictly comply with the deadlines related to each aspect of performance.
5.2.1 If Seller becomes aware of any anticipated delay in Seller’s performance hereunder or becomes aware of a possible impediment to its performance, Seller shall notify Buyer of such in writing (email is acceptable).
5.2.2 If the delay or impediment is not due to something caused in whole or in part by Seller or its employees or agents, Buyer may extend one or more applicable milestones.
5.3 Contractual Penalty
5.3.1 If Seller fails to meet one or more of the milestones or final deadlines, Seller shall pay to Buyer a penalty equal to 3% of the Tooling purchase price, for each calendar week that such failure continues. This penalty shall not preclude Buyer from exercising any of its it legal, contractual or equitable rights for such failure.
5.3.2 The contractual penalty shall accrue irrespective of the existence and extent of Buyer monetary damage.
5.4.1 If Seller does not timely satisfy its obligations, Buyer may declare all or a portion of the Order voided.
5.4.2 In the event of a breach by Seller of the Order, Terms or this Attachment 1, Buyer shall have the immediate right to take possession of the Tooling (in whatever state of design or manufacture the Tooling exists at such time) and of all related parts, drawings and all other documentation related to the Tooling and in such case Seller shall grant to Buyer a royalty free, perpetual, transferable, non-exclusive, worldwide license to obtain, manufacture, fabricate or take whatever actions are necessary to complete the Tooling, or to authorize one or more third parties to do so on Buyer’s behalf.
6.1.1 The delivery term set forth in the respective Order shall be construed in accordance with the respective applicable Incoterms. Partial deliveries are not acceptable without the Buyer prior written consent.
6.1.2 Delivery shall be deemed on time if the whole scope of supply is delivered on time and if the Tooling and/or the documents are free from any defect or non-conformity.
6.2.1 Acceptance requires the contractual compliance of the Tooling, which shall be demonstrated by tests and thereafter, in case of verification of such compliance, to be confirmed by the parties in writing (formal Acceptance). The acceptance procedures, the set-up of the tests as well as the object and the content of testing will be defined in the Order, Buyer Specs or attachments to the Order; otherwise the acceptance tests shall be carried out in accordance with industry standards.
6.3 Requirements and consequences of the Acceptance
6.3.1 If all the acceptance tests are satisfactorily completed and Seller has otherwise satisfied all of its contractual obligations, Buyer agrees to sign an acceptance confirmation document reasonably acceptable to Buyer. If Seller has satisfied all of its contractual requirements and acceptance tests have been satisfactorily completer and Buyer fails to provide acceptance, the Tooling shall be deemed accepted.
6.3.2 Acceptance (i) will (as the case may be) result in the obligation of Buyer to make payment; (ii) will constitute the transfer of title in the Tooling to Buyer; and (iii) will be the start of the warranty period (Section 7.3).
Seller represents and warrants that with respect to any Tooling that it provides to Buyer (i) that the Tooling and the documents are free from any defects, (ii) that all the contractual requirements are fully satisfied and (iii) that the Tooling and the documents will be in accordance with all Buyer Specs other requirements and specifications of the Order, Terms and this Attachment 1 and will remain in accordance therewith during the entire warranty period.
7.2.1 During the warranty period, Seller shall, upon notice thereof from Buyer at any time, promptly repair, replace or otherwise satisfactorily deal with the same in a manner so as to bring the Tooling into full conformity, all at Seller’s sole cost and expense and without limiting or affecting Buyer’s other rights or remedies available hereunder or at law or in equity. Thus, the Seller shall use best efforts to properly remedy any defect or non-conformity of the Tooling within 48 hours. To the extent that Seller fails to do so, Buyer may (even without prior notice to the Supplier) have such defect or non-conformity corrected by itself or a third party at the Seller’s sole expense.
7.2.3 Upon Seller’s breach of any warranty identified in the Order, Terms or this Attachment 1, Buyer may, at its sole discretion, (i) declare the Order voided; (ii) demand an appropriate reduction in price; or (iii) require the prompt replacement of the defective Tooling with a new Tooling by Seller.
7.2.4 The place of remedy shall be the destination of the Tooling. Any costs and damages incurred in connection with the remedy of the defect, including but not limited to, the costs for transport, travelling, work and material as well as any costs incurred in connection with the discovery and the remedy of the defect shall be borne by Seller.
7.3 Warranty period
The warranty period shall be twenty-four months or the identified number of rated shots or hits, whichever is realized last. It shall begin with the Buyers (formal) Acceptance.
7.4 Examination and Notice of Non-Conformity
Legal obligations of Buyer with respect to the examination of the delivery and the obligation to notify defects shall be hereby excluded, particularly with regard to § 377 of the Commercial Code (UGB).
9. RIGHTS OF INSPECTION
9.1.1 Seller authorizes Buyer and its agents the right to inspect Sellers´s work during the performance of the Order. Any such Inspection by Buyer or its agent will not limit Seller's responsibility under the Order, Terms or this Attachment a, nor relieve Seller of any of its obligations thereunder.
9.1.2 Buyer’s right of Inspection includes, but is not limited to (i) the review and release approval of the design drawings; (ii) access to Seller's operating facilities and plants; (iii) the inspection of Seller's records for planning, design, quality assurance and test results (including the inspection of manuals and documentation); (iv) the preparation of copies; (v) the interviewing of Seller staff and agents; and (vi) the taking of Samples.
10. UN CONVENTION
10.1 The Terms, including this Attachment 1, shall not be subject to the United Nations Convention on Contracts for the International Sale of Goods.