- AGREEMENT AND ACCEPTANCE OF ORDER
These Terms and Conditions, together with the Purchase Order, any documents referenced in the Purchase Order, including, but not limited to, Statements of Work, and any documents referred to in these Terms and Conditions (collectively, the “Order”) constitute the entire agreement between Kirby Opco, LLC (“Buyer”) and supplier (“Supplier”). Any acceptance of the Order by Supplier is limited to acceptance of the express terms set forth in the Order. The Order expressly rejects all terms and conditions of Supplier, whether stated in Supplier’s quotations, price lists, sales or technical literature, or elsewhere, at any time and irrespective of Buyer’s acceptance of or payment for Supplier’s goods or services.
- PRICING AND TAXES
The price for goods or services (“Price”) will be the amount shown on the face of the Purchase Order. The Price includes all charges related to: (a) the goods’ preparation; actual fabrication; packaging; delivery as specified in Section 6 of these Terms and Conditions; and duties, taxes, and customs clearance costs related to export, or (b) the performance of services, except as otherwise expressly set forth in the Purchase Order or agreed in writing by Buyer.
All Prices set forth in the Purchase Order are not subject to increase unless Buyer first approves, in writing, any such written request for a Price increase from Supplier. Supplier must provide such written request to Buyer as soon as it becomes aware of the potential Price increase, but no less than at least ninety (90) days prior to the date of such anticipated increase, along with Supplier’s written, supporting justification and rationale, including evidence of actions taken by Supplier to avoid such Price increase.
The Prices for the goods or services shall not exceed the lowest cost at which Supplier sells substantially similar goods in like quantities or substantially similar services to any other similarly-situated customer as of the date of the Purchase Order.
Buyer and Supplier (collectively, the “Parties” and singularly, “Party”) acknowledge and agree to pay all taxes required to be paid by them by all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations of any jurisdiction throughout the world (“Applicable Law”).
- INVOICES AND PAYMENT
Using the contact information on the Purchase Order, Supplier will email, fax, or mail to Buyer an invoice for each separate shipment of goods or performance of services (“Invoice”). Each Invoice will include all information required by any provision of the Order, including applicable part numbers and Purchase Order numbers.
Buyer will pay Supplier the Price of the goods or services as agreed to in the Purchase Order and as confirmed by the Invoice. Such payment shall be in full and within sixty (60) days of Buyer’s receipt of the Invoice.
Supplier will not submit an Invoice for goods before delivery at the location designated in the Purchase Order. If Buyer disputes the amount of any Invoice, Buyer may deduct the amount in dispute and will negotiate in good faith with Supplier as to the amount due.
- DELIVERY AND QUANTITIES
Time is of the essence with the Order. Supplier shall deliver all goods and perform all services within the timeframes specified in the Purchase Order or as otherwise agreed to in writing by the Parties (“Delivery Date”). If Supplier is unable to deliver the goods in full by the Delivery Date, Supplier shall notify Buyer in writing as soon as Supplier has reason to suspect it may not be able to comply with the Delivery Date and provide a revised delivery estimate. Buyer has the right to accept or reject the revised delivery estimate. If Buyer rejects the revised delivery estimate: (a) Supplier will deliver the goods or services by the most expeditious method of transport, including air freight, and Supplier will pay or reimburse Buyer the full cost of such expeditious method of transport, or (b) in accordance with Section 25 of these Terms and Conditions, Buyer may terminate the Order as to goods not yet shipped or services not yet rendered, purchase substitute goods or services elsewhere with no liability or further obligation to Supplier under the Order, and charge Supplier with any loss or incremental expense incurred.
Buyer will have no liability for the payment of goods or services which are delivered to Buyer in advance of the Delivery Date. Buyer has the right to reject such goods or services and return them at Supplier’s expense, including all transportation charges.
Supplier shall deliver all goods and perform all services in the quantities specified in the Purchase Order or as otherwise agreed to in writing by the Parties (“Quantities”). Buyer will have no liability for the payment of goods or services which are delivered to Buyer in excess of the Quantities. Buyer has the right to reject such goods or services in excess of the Quantities and return them at Supplier’s expense, including all transportation charges.
- CHANGES
Buyer reserves the right at any time to make written changes to any one or more of the following: (a) Statements of Work; (b) drawings, designs, data, and requirements that are part of the Order, where the goods Supplier is to furnish are specially manufactured for Buyer; (c) Quantities to be delivered; (d) methods of transport or packing; (e) place of delivery; (f) Delivery Date; and (g) manner of delivery (collectively, “Changes”).
If any such Change to the Order causes a decrease in the cost of or the time required for performance of the Order, Buyer is entitled to an adjustment in the Price, Delivery Date, or both, and Supplier’s consent shall not be unreasonably withheld. If any such Change to the Order causes an increase in the cost of or the time required for performance of the Order, and Supplier’s direct costs or required time for performance are materially affected by such Changes, the Parties will negotiate an appropriate adjustment. Any request by Supplier for an adjustment in Price or Delivery Date as a result of Buyer’s Changes to the Order must be made within thirty (30) days of Supplier becoming aware of the requested Changes.
- TRANSPORTATION
Unless expressly otherwise stated on the face of the Purchase Order:
(a) Delivery of Goods from Supplier Located Outside of the United States – Delivery shall be Free Carrier (FCA) Incoterms, with Supplier assuming all responsibility and liability for delivery of the goods to the facility of Buyer’s freight forwarder, the port, or airport terminal. Supplier shall give written notice to Buyer when the goods are delivered to Buyer’s carrier for transportation. Supplier shall provide Buyer with all shipping documents, including, but not limited to, the packing list, the bill of lading, the commercial invoice, and any other transportation documents. Title to the goods transfers to Buyer at the facility of Buyer’s freight forwarder, the port, or airport terminal. Buyer is not responsible for any damage to the goods that may occur during transport prior to title of the goods transferring to Buyer, and Supplier is not relieved of any obligations to Buyer that may arise out of the damage.
(b) Delivery of Goods from Supplier Located Within the United States – Delivery shall be free on board (FOB), with Supplier assuming all responsibility and liability for delivery of the goods to Buyer’s designated carrier. Supplier shall give written notice to Buyer when the goods are delivered to Buyer’s carrier for transportation. Supplier shall provide Buyer with all shipping documents, including, but not limited to, the packing list, the bill of lading, the commercial invoice, and any other transportation documents. Title to the goods transfers to Buyer when the goods reach Buyer’s designated carrier. Buyer is not responsible for any damage to the goods that may occur during transport prior to title of the goods transferring to Buyer, and Supplier is not relieved of any obligations to Buyer that may arise out of the damage.
No charges for handling, packing, containers, boxes, or crates are allowed unless expressly authorized in writing by Buyer and specified in the Purchase Order. Supplier is liable for damage to the goods caused by improper boxing, crating, or packing.
- SUPPLY CHAIN SHIPMENT SECURITY
Supplier accepts responsibility for, and shall implement security measures to ensure, the safe and secure transportation of goods throughout the supply chain and adhere to all applicable security requirements (including, but not limited to, factory and shipping container security) of the country in which it operates, consistent with the security criteria required under the Customs-Trade Partnership Against Terrorism (“C-TPAT”) program sponsored by the United States (“U.S.”) Border Protection Agency. Supplier shall immediately notify Buyer upon learning of any compromised container seal. Supplier shall comply with all U.S. customs laws and security measures required by C-TPAT and promptly notify Buyer of any non-compliance with C-TPAT or Applicable Law.
- INSPECTION AND ACCEPTANCE OR REJECTION OF GOODS OR SERVICES
Buyer may inspect the goods during any stage of their manufacture, construction, preparation, completion, or delivery. Buyer shall have the right to enter Supplier’s premises at reasonable times to verify that the goods and services covered by the Order conform to all specified requirements of Buyer, and Supplier agrees to provide any and all supporting documentation required by Buyer or Buyer’s customers in the course of such investigation. At Buyer’s request, Supplier shall submit production and quality test reports and related data.
Payment for any goods or services under the Order shall not constitute acceptance thereof. Notwithstanding payment, acceptance, or prior inspection, if any of the goods and/or services are found to be defective in material or workmanship, not in conformity with the requirements of the Order, and/or in breach of warranty (express or implied), in addition to any other remedies that Buyer may have, Buyer may, at its sole discretion: (a) correct the goods or have the goods corrected at Supplier’s risk and expense, including transportation charges; (b) reject and return the goods for full replacement of the goods at Supplier’s risk and expense, including transportation fees; (c) reject and return the goods for full credit at Supplier’s risk and expense, including transportation fees; or (d) discontinue the services at Supplier’s expense. Supplier shall promptly remove goods Buyer rejects and at Supplier’s expense and risk. Acceptance of any part of the goods or services shall not bind Buyer to accept future shipments or services.
Buyer’s final acceptance shall not be conclusive with respect to latent defects or misrepresentations. Nothing in the Order shall relieve Supplier from the obligations of testing, inspection, and quality control.
- REPRESENTATIONS, WARRANTIES, AND COVENANTS
Each Party represents and warrants to the other Party that it has the full power to enter into the Order and is an entity validly existing and in good standing under the laws of the jurisdiction of incorporation or organization in which such Party is formed or organized.
Supplier shall hold and maintain all licenses, permits, and other authorizations necessary for Supplier to perform its obligations under the Order, copies of which Supplier will provide to Buyer upon request, and Supplier will notify Buyer immediately after becoming aware that any license, permit, or authorization required for Supplier to perform its obligations pursuant to the Order has expired, been lost, or suspended.
Supplier will not create any lien on Buyer’s property or assets and waives all rights to any lien.
Supplier represents and warrants to Buyer that in regard to the goods and/or services furnished hereunder: (a) title to all goods will pass to Buyer free and clear of any claim, lien, or encumbrance of a creditor of Supplier; (b) all goods will expressly conform with the requirements of the Order and will be merchantable, suitable, and usable by Buyer and its customers for the intended purpose; (c) all goods will be free of any defect in material and workmanship; (d) all goods will be free of toxic or poisonous materials; (e) all goods will be free of any defect in design if Supplier contributed to the design of the goods; (f) all services shall be performed in a workmanlike manner; and (g) all goods were produced and services were provided in accordance with Applicable Law.
These warranties shall be in addition to any warranties of additional scope given by Supplier to Buyer and in addition to all implied warranties under the Uniform Commercial Code of the U.S. No warranty, whether implied or express, shall be deemed disclaimed or excluded.
Supplier will pay or reimburse to Buyer all expenses incurred by Buyer in connection with any repair or replacement of any goods or services provided pursuant to the Order that are in breach of any warranty. Additionally, Supplier will pay or reimburse Buyer all expenses incurred by Buyer for any product of Buyer which incorporates any goods or services provided pursuant to the Order that Buyer sells to a customer and Buyer is required to repair or replace as a result of the quality of or breach of warranty regarding the goods or services.
- PROPERTY OF BUYER; TOOLING
Buyer is and shall remain the exclusive owner of any personal property, however denominated, whether or not attached or otherwise affixed to any real property which Buyer provides to Supplier in connection with the Order or the cost of which Buyer has paid to Supplier.
All supplies, materials, tools, jigs, dies, fixtures, gauges, molds, patterns, equipment ancillary products, and other items furnished or specifically paid for by Buyer for use in the manufacture of the goods or provision of services (“Tooling”) shall remain wholly the property of Buyer. Supplier shall sign any forms reasonably requested by Buyer to provide record notice of Buyer’s interest and ownership in the Tooling. Supplier bears the risk of loss of and damage to the Tooling, normal wear and tear excepted. Supplier shall maintain property damage insurance adequate to cover the replacement costs of all Tooling.
Supplier represents and covenants that: (a) the Tooling shall not be used by Supplier for any purpose other than the performance of the Order, unless previously agreed to in writing by Buyer; (b) the Tooling shall be deemed personal property of Buyer, not a fixture; (c) the Tooling must be conspicuously identified as property of Buyer, with specific reference to Buyer’s identity and relevant part numbers; (d) the Tooling shall not be commingled with the property of Supplier or with that of a third party; (e) the Tooling must not be moved from Supplier’s premises without Buyer’s prior written approval; (f) Supplier will not allow the Tooling to be encumbered in any way as a result of any act or omission of Supplier; (g) Supplier will operate the Tooling in a safe manner in accordance with all warnings and safeguards; and (h) Supplier shall not make any modifications to the Tooling without the written consent of Buyer. Supplier assumes total risk and liability if any changes are implemented to the Tooling without Buyer’s written approval.
In the event the Tooling or Buyer’s machinery or equipment is used by Supplier in accordance with the Order, such Tooling, machinery, or equipment shall be considered as being under the sole custody and control of Supplier during the period of use by Supplier.
The Tooling shall at all times be properly housed and maintained by Supplier and kept in good condition in accordance with general industry maintenance standards. Specifically, Supplier must conduct routine inspections, cleaning, lubrication, polishing, stress relieving, and calibration of the Tooling at intervals recommended by the Tooling manufacturer or as otherwise reasonably determined by the Parties to ensure optimal performance. Supplier shall immediately address any malfunctions, damages, or defects in the Tooling. Supplier shall use its best efforts to minimize downtime and ensure that the Tooling is restored to good working condition as quickly as possible. Supplier shall keep detailed records of all maintenance, repair, and inspection activities performed on the Tooling, and these records shall be available for review by Buyer upon request. Buyer shall have the right to enter Supplier’s premises at all reasonable times to inspect the Tooling and Supplier’s records with respect to the Tooling.
Upon request of Buyer, the Tooling shall be immediately released to Buyer or delivered to Buyer by Supplier to any location designated by Buyer, in which event Buyer shall pay Supplier the reasonable cost of delivering the Tooling to such location.
Upon termination or expiration of the Order, Supplier’s right to use the Tooling, including the Tooling designs, whether internal or external to Supplier’s premises, shall immediately terminate, and Supplier will immediately place the Tooling in a segregated area to await disposition by Buyer.
The authorization to use the Tooling is at the sole discretion of Buyer and may be revoked at any time.
- CONFIDENTIAL INFORMATION
“Confidential Information” means all information relating to that Party’s business, whether disclosed or made accessible to the other Party before, on, or after the date of the Order, regardless of the medium on which the information is stored, recorded, conveyed, or communicated, whether or not in writing, oral, or observable, and whether or not specifically identified as “Confidential” or “Proprietary,” including, but not limited to: (a) cost, pricing, profit, production, forecast, and other accounting, economic, and financial data; (b) technical drawings, product designs, blueprints, artistic and scientific data, formulas, samples, ingredients, product specifications, manufacturing processes and systems, quality control procedures, and business methods, processes, operating techniques, and “know how;” (c) ideas for research and development; (d) information about the Parties’ customers and suppliers; (e) business and marketing plans and strategies; (f) summaries, excerpts, compilations, and notes prepared related to any of the preceding information; (g) any other information relating to, disclosed, accessed, received, stored, or collected by or on behalf of the disclosing Party that is, or should be reasonably understood to be, confidential to the disclosing Party; (h) any information that is a “trade secret” of a Party as that term is defined in the Uniform Trade Secrets Act of the U.S. (“Trade Secret”); and (i) the existence of the Order or the fact that there was, is, or may be a business relationship or business transaction between the Parties.
The Parties agree to hold all exchanged Confidential Information in the strictest confidence, utilizing the same degree of protective care that normally prudent business professionals would use to protect the confidence of their own confidential and/or proprietary information. The receiving Party will: (a) use Confidential Information solely for the purpose contemplated by the Order unless otherwise agreed to in writing by the disclosing Party; (b) not disclose, distribute, or otherwise disseminate Confidential Information to anyone other than to its agents, directors, employees, financing sources, and professional advisors (as those terms are commonly defined under Controlling Law, which is specified in Section 21 of these Terms and Conditions) who have a need to know and who are bound by confidentiality obligations at least as restrictive as those in these Terms and Conditions; (c) protect Confidential Information with at least the same degree of care as it uses to protect its own confidential information of a similar nature, with, at a minimum, the receiving Party using at least reasonable care; (d) not, directly or indirectly, reveal, report, publish, disclose, or otherwise transfer any Confidential Information to any other third party at any time except as expressly authorized in writing by the disclosing Party prior to any such revelation, report, publication, or disclosure; (e) promptly notify the disclosing Party when the receiving Party discovers that Confidential Information has been lost, used without authorization, or disclosed without authorization; and (f) not reproduce Confidential Information except as required for carrying out the Order, in which case the receiving Party will retain and reproduce all confidential or proprietary notices that appear on the original.
Except for Trade Secrets, the receiving Party’s obligations under Section 11 of these Terms and Conditions do not extend to information that the receiving Party can demonstrate by legally sufficient evidence: (a) is or becomes generally publicly available through no fault of the receiving Party; (b) as evidenced by written documentation, was known to the receiving Party free of any confidentiality obligations when it was disclosed to the receiving Party; (c) is disclosed by the receiving Party only after obtaining written approval from the disclosing Party; (d) is subsequently received by the receiving Party from a third party who has the right to make the disclosure and is not under an obligation of confidentiality to the disclosing Party; or (e) is independently developed by the receiving Party without using or referring to the disclosing Party’s Confidential Information.
The receiving Party may disclose Confidential Information to the extent required by Applicable Law. If the receiving Party becomes subject to a court order or subpoena that requires the receiving Party to disclose Confidential Information, the receiving Party shall, to the extent permitted by Applicable Law: (a) promptly notify the disclosing Party of the terms and the circumstances surrounding its issuance, (b) consult in good faith regarding possible responses and make best efforts to narrow the order’s scope, obtain a protective order from the court, or produce documents to the court or government body under seal with appropriate instructions regarding preservation of the information’s confidentiality, and (c) if disclosure is required to prevent contempt sanctions or other penalties, disclose only the Confidential Information that is legally required to be disclosed, consistent with a reasonable interpretation of the order or subpoena.
Upon the termination or fulfillment of the Order, the receiving Party will, at the written request of the disclosing Party, (a) provide a copy of all such Confidential Information in the receiving Party’s possession via a mutually agreed upon secure transmission format, including returning all or subsets of data in the receiving Party’s possession or reasonable control to the disclosing Party or (b) immediately and securely destroy all such Confidential Information in the receiving Party’s possession or reasonable control (including any and all copies in any format) in accordance with Applicable Law and in a manner that makes the Confidential Information non-readable and non-retrievable.
The obligations regarding Confidential Information shall remain in full force and effect for the maximum time allowable by Controlling Law, unless the disclosing Party provides written documentation stating otherwise or unless the Confidential Information comes within the public domain without the direct or indirect violation by the receiving Party. The confidentiality obligations with respect to any Confidential Information that constitutes a Trade Secret shall remain in full force and effect for as long as such Confidential Information retains its status as a Trade Secret and as long as permissible by Controlling Law.
The Parties shall retain all rights to their respective Confidential Information, including any improvements, enhancements, or modifications to the Confidential Information which may arise as a result of the Order. Except for Supplier providing the goods or services in accordance with the Order, Supplier shall not use the Confidential Information of Buyer for any commercial use, nor will Supplier use the same for its individual benefit or the benefit of any third party. Supplier shall not commercialize, embody in any of its products (except for the goods provided to Buyer), or exploit any Confidential Information of Buyer without the prior written consent of Buyer. Accordingly, Supplier shall not copy, reproduce, or reduce to writing any part of the Confidential Information unless Buyer grants written permission. Buyer’s sharing of Confidential Information shall not be construed, by implication or otherwise, to convey proprietary rights and/or intellectual property rights to Supplier, nor to grant any license to Supplier relating to such Confidential Information. Nothing in the Order shall be construed as granting Supplier the right to use Confidential Information which becomes known through an improper act or omission of Supplier.
The Parties retain the right to determine, in their sole discretion, what information they make available, so long as the other Party is able to fulfill its obligations under the Order. The Parties make no representation or warranties (express, implied, or statutory) concerning the completeness or accuracy of the Confidential Information disclosed.
- INVENTIONS AND WORK MADE FOR HIRE
Supplier hereby assigns to Buyer and shall not otherwise make use of any invention, improvement, or discovery (whether or not patentable) conceived or reduced to practice in the performance of the Order by any employee or other person working under Supplier’s direction, and such assignment shall be considered as additional consideration for the making of the Order. Upon completion of the Order, Supplier shall deliver to Buyer any and all information relating to any such invention, improvement, or discovery and shall cause employees or others subject to Supplier’s instructions to sign, as appropriate, all documents necessary or convenient to enable Buyer to file applications for patents and to obtain title thereto.
All rights, title, and interest in and to all goods, services, deliverables, inventions, improvements, discovery, and data arising in connection with the Order, whether or not patentable, and all copyrights, patents, patent rights, trademarks, trademark rights, Trade Secrets, and Trade Secret rights therein and thereto are hereby assigned to Buyer, and Supplier shall take all actions reasonably requested by Buyer to vest in Buyer good and marketable title therein.
All work or services performed or created by Supplier for Buyer and any goods which Supplier delivers to Buyer under the Order shall be deemed work made for hire, and all rights thereto shall belong exclusively to Buyer.
- TRADEMARKS
The names and trademarks of a Party and its affiliates will remain the sole and exclusive property of that Party or its affiliate. A Party will not use any name or trademark of the other Party or the other Party’s affiliates for any purpose whatsoever without prior written authorization. Supplier has no right to manufacture and sell to any person, firm, or entity (other than Buyer or its designated affiliates) any goods, products, components, assemblies, or services that bear or contain any of Buyer’s trademarks. Without obtaining the prior written consent of Buyer, Supplier shall not advertise or publish the fact that Supplier has contracted to furnish Buyer with goods or services.
Any authorization of Buyer to apply or affix its trademarks to the goods Supplier provides must be granted by Buyer in writing pursuant to a Statement of Work. Supplier’s application of Buyer’s trademarks to any goods pursuant to a Statement of Work does not grant Supplier any license to Buyer’s trademarks.
- RELATIONSHIP OF THE PARTIES
The relationship between the Parties is solely that of vendor and vendee, and they are independent contracting entities. Nothing in the Order creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
- INDEMNIFICATION
Supplier will defend, at its own expense, any claim, lawsuit, or proceeding (“Proceeding”) brought against Buyer or its affiliates, related entities, subsidiaries, constituent companies, agents, vendees, or customers (collectively, “Buyer Indemnitees”) to the extent the Proceeding is based on an allegation that the goods designed or produced by Supplier or any part thereof or any product resulting from use thereof constitutes an infringement of any applicable patent, and Supplier will pay all damages, attorney fees, and costs awarded therein. Supplier further agrees to indemnify Buyer Indemnitees against any and all expenses, losses, royalties, profits, damages, court costs, and attorney’s fees resulting from the bringing of such Proceeding, including any settlement or decree of judgment entered therein. Supplier’s obligation hereunder shall survive Buyer’s acceptance and payment of the goods and/or services.
If any goods or services provided by Supplier under the Order are held to constitute an infringement, and use thereof is enjoined, Supplier, at its own expense and its option, will either: (a) procure for Buyer Indemnitees the right to continue using the same; (b) modify the same to avoid infringement; (c) replace the same with a non-infringing article; or (d) refund the full purchase price and pay all costs which Indemnified Buyer incurs in connection with receipt and return thereof.
Supplier agrees to indemnify and hold harmless Buyer Indemnitees from all Proceedings; losses; expenses; fees, including attorney’s fees; costs; and judgments that may be asserted against Buyer Indemnitees based on an allegation that Supplier’s performance of any service, any defect in material or workmanship of any goods (including the failure to affix safety warnings to the goods and to provide adequate use instructions), or any defect in the design of the goods (if Supplier contributed to the design) delivered per the Order caused or contributed in any way to the death of or injury to any person or damage to or destruction of any property.
In the event that any of Buyer’s products are subject to a recall action or investigation (as required by any governmental agency or authority) due to a defect that is attributable to the goods provided by Supplier, Supplier shall indemnify, defend, and hold Buyer Indemnitees harmless from any and all costs and expenses, including administrative expenses, incurred by Buyer Indemnitees or for which Buyer Indemnitees become obligated to any third party in connection with such recall. To the extent that Supplier causes or contributes to any delay or damages affecting Buyer Indemnitees, or for which Buyer Indemnitees may be held accountable to any third party, Supplier shall be obligated to pay to Buyer Indemnitees all actual, consequential, special, and/or liquidated damages associated with any such delay or damages.
In case of Proceeding brought against Buyer for which Supplier is obligated to indemnify Buyer hereunder, Supplier shall, upon notice from Buyer, resist or defend such Proceeding by counsel reasonably satisfactory to Buyer. Supplier shall have the right to defend and settle, at Supplier’s own expense, the Proceeding, so long as Supplier pursues the same diligently and in good faith. Buyer shall cooperate with Supplier, at Supplier’s expense, in the defense and settlement of all Proceedings. Buyer, at its own expense, shall have the right to participate in the Proceedings through counsel of its choice.
Buyer shall indemnify, defend, and hold Supplier harmless from and against any and all liability, damage, or expense incurred in connection with any Proceeding based on infringement of any U.S. patent by reason of Supplier’s use of any unaltered Kirby® product provided to Supplier by Buyer so that Supplier may perform its obligations under the Order.
- LIMITATION OF LIABILITY
Should Supplier incur any expense, damage, or other liabilities (including, without limitation, reasonable attorney’s fees) in connection with the Order, Buyer’s liability shall be limited to proven, direct, and actual damages, and Buyer’s maximum liability to Supplier is defined pursuant to Section 18 of these Terms and Conditions. In no event will Buyer be liable for consequential, punitive, indirect, reliance, or incidental damages or lost profits, however caused and on any theory of liability (including, but not limited to, negligence or strict liability) and whether or not Buyer has been advised of the possibility of such damages.
- INSURANCE
Supplier will maintain, at its own expense, adequate and legally required insurance coverage for its performance under the Order, including, but not limited to, the following primary and/or excess insurance coverages or their equivalents: (a) statutory workers’ compensation; (b) employer’s liability of USD 1 million; (c) commercial general liability (including products/completed operations and contractual liability coverage) of USD 3 million bodily injury or property damage per occurrence; and (d) all-risk property coverage, including transit and theft coverage for goods, whether or not owned by Buyer, that have been ordered by Buyer and are in the care, custody, or control of Supplier, its agents, or contractors of USD 2 million. Upon Buyer’s request, Supplier will promptly furnish certificates of insurance indicating the foregoing coverage and supply written notice to Buyer at least thirty (30) days prior to the cancellation, reduction, or non-renewal of any such coverages. Supplier shall name Buyer as an additional insured under all aforementioned insurance policies/coverages.
Supplier’s compliance with these insurance requirements does not in any way affect Supplier’s indemnification of Buyer under Section 15 of these Terms and Conditions.
- TERMINATION
Buyer may terminate the Order, in whole or in part, at any time by written notice to Supplier, whether or not Supplier is in default of any obligation under the Order and without regard to the existence of any cause or Force Majeure Event as defined in Section 19 of these Terms and Conditions.
Within sixty (60) days after receipt of such notice of termination, Supplier will submit any claims it may have resulting from such termination. Buyer will have the right to inspect, verify, and/or substantiate such claims at any reasonable time by inspecting and auditing the records, facilities, work, and/or materials of Supplier relating to the Order. Buyer shall have access to Supplier’s premises and records prior or subsequent to payment in full or partial resolution of any claims to verify charges alleged by Supplier relating to the termination.
Immediately after receipt of a termination notice, unless Buyer otherwise directs, Supplier will immediately terminate all work under the Order and, additionally: (a) settle all claims arising out of the Order, (b) transfer title and deliver to Buyer all completed work which conforms to the requirements of the Order and does not exceed the Quantities authorized for delivery, and (c) take all action necessary to protect, segregate, and ready for return to Buyer all property in Supplier’s possession in which Buyer has or may acquire an interest.
If Buyer terminates or cancels an Order, Buyer’s sole liability to Supplier shall be to purchase from Supplier the following amounts of goods which are usable by Buyer and of good and merchantable quality and on hand at Supplier as of the date of termination notice: (a) up to thirty (30) days’ supply of goods completed and ready for immediate shipment at the Price outlined in the Purchase Order, and (b) up to ninety (90) days’ supply of raw materials that are not otherwise usable by Supplier for the production of other goods. Upon termination of the Order for services, Buyer shall pay Supplier for any services rendered to the date of termination notice.
Payment made under Section 18 of these Terms and Conditions will constitute Buyer’s only liability in the event the Order is terminated hereunder.
The provisions of this Section 18 shall not apply if Buyer cancels the Order due to Supplier’s default or for any other cause allowed by Controlling Law or under the Order.
If the Order constitutes a “requirements” Order as defined by Controlling Law, the Parties have the right to terminate the Order without cause, except that a “requirements” Order shall be terminable by Buyer on fourteen (14) days’ notice to Supplier.
- FORCE MAJEURE
Neither Party will be liable for failure to perform any of its obligations under the Order during any period in which that Party cannot perform due to acts of God beyond the Party’s control, including, but not limited to any present or future law, regulation or order; earthquake; flood; fire; epidemic; pandemic; accident; explosion; casualty; riot; civil disturbance; war or armed conflict; act of terrorism or threat thereof; or delay of a common carrier (all of the foregoing being herein referred to as “Force Majeure Event”), provided that the Party so delayed immediately notifies the other Party of the delay and uses reasonable efforts to mitigate the Force Majeure Event’s effects and resume performance as quickly as possible.
Supplier shall not be excused from performance for circumstances relating to Supplier’s own labor force, including labor strikes and lockouts; such circumstances relating to Supplier’s own labor force shall not be considered a Force Majeure Event.
If Supplier’s performance is delayed by a Force Majeure Event for a cumulative period of thirty (30) days or more, Buyer may terminate the Order by giving Supplier written notice, and the termination will be effective pursuant to Section 25 of these Terms and Conditions.
If Buyer terminates the Order due to a Force Majeure Event, its sole liability under the Order will be to pay any balance due for conforming goods or services delivered by Supplier before receipt of Buyer’s termination notice and ordered by Buyer for delivery and actually delivered within fifteen (15) days after Supplier’s receipt of Buyer’s termination notice.
If Supplier cannot deliver goods or services hereunder because of a Force Majeure Event, Buyer may immediately seek substitute performance.
- COMPLIANCE WITH LAWS
Supplier warrants that all goods and services furnished under the Order will comply with all Applicable Law and amendments to Applicable Law, including, but not limited to: (a) the U.S. Fair Labor Standards Act; (b) U.S. the Civil Rights Act of 1964; (c) the U.S. Occupational Safety and Health Act of 1970; (d) the U.S. Federal Hazardous Materials Transportation Safety Act of 1994; (e) the U.S. Consumer Product Safety Act of 1972; and (f) the U.S. Foreign Corrupt Practices Act of 1977, including as these laws may be amended.
Furthermore, Supplier shall not: (a) participate in human trafficking; (b) use forced, involuntary, or slave labor; or (c) purchase materials or services from companies using forced, involuntary, or slave labor.
Supplier represents and warrants that it and affiliates and subcontractors comply with Applicable Law regarding, and prohibit any form of, child labor or other exploitation of children in the manufacturing and delivery of the services and goods consistent with provisions of the International Labor Organization’s (ILO) Minimum Age Convention (No. 138), 1973.
Supplier shall supply on request of Buyer all certifications and information relating to “conflict minerals” requested for purpose of compliance with Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of the U.S. and shall comply with all applicable provisions of the aforesaid act.
Supplier shall treat as confidential any documents that identify Buyer’s consumer or employee information of any kind or nature (“Personal Data”). Supplier shall comply with all Applicable Law regarding privacy and data protection, including, but not limited to, and as applicable: (a) the Regulation (EU) 2016/679 (General Data Protection Regulation); (b) iData Protection Act 1998; (c) the European Union Data Protection Directive (95/46/EC); (d) the European Union Electronic Communications Data Protection Directives (2002/58/EC and 2009/136/EC); (e) the European Union Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003); and (f) U.S. state privacy laws, including, but not limited to, the California Consumer Privacy Act of 2018, the Virginia Consumer Data Protection Act of 2023, and the Colorado Privacy Act of 2023. Supplier will ensure that adequate technical, organizational, and security measures are taken against unauthorized or unlawful processing of Personal Data. Supplier will not transfer Personal Data to or allow Personal Data to be viewable by any third party (including as a result of the use of any cloud-based service) without Buyer’s prior written consent. Where Buyer agrees to the transfer of Personal Data, Supplier shall ensure that the transfer complies with Applicable Law. Supplier shall provide Buyer with notice of any security breach within twenty-four (24) hours of becoming aware of the same. Supplier shall provide Buyer with all assistance and information reasonably required by Buyer in relation to any security breach. Supplier will cooperate with Buyer and any relevant regulatory authority in the event of any litigation or regulatory inquiry concerning any security breach or use of Personal Data. Supplier shall not sell, give away, or share any Personal Data.
Supplier acknowledges that its undertakings in this Section 20 of these Terms and Conditions are material to Buyer agreeing to the Order.
Supplier shall provide annually to Buyer accurate and complete North American Free Trade Agreement (“NAFTA”) Certificates of Origin for the goods supplied to Buyer hereunder. The NAFTA Certificate of Origin must be completed in accordance with regulations published by the U.S. Department of Treasury in the Federal Register and any amendments thereto, and in accordance with instructions issued to Supplier by Buyer. Upon a change in the NAFTA content of any goods supplied to Buyer hereunder, Supplier shall immediately provide Buyer with a new NAFTA Certificate of Origin.
- CONTROLLING LAW
Any and all matters of dispute between the Parties hereto, whether arising from the Order itself or from alleged, extra facts prior to, during, or subsequent to the Order, including, without limitation, fraud, misrepresentation, negligence, or any other alleged tort or contract violation, shall be governed by, and in accordance with, the laws of the State of Ohio, regardless of the legal theory upon which such matter is asserted. Any litigation will be brought exclusively in Cuyahoga County, Ohio, and the Parties consent to the jurisdiction of the state and federal courts located therein, submit to the jurisdiction thereof, and waive the right to change venue. Buyer shall be entitled to all remedies in law and equity, including all remedies available under the Uniform Commercial Code of the U.S.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Order.
- SEVERABILITY
In the event any term, phrase, clause, or provision of the Order shall be deemed invalid, illegal, or unenforceable in any respect or cannot be reformed to be enforceable as described above, the same shall be severable and the other provisions of the Order shall not, in any way, be affected or impaired thereby. If any term or other provision of the Order is invalid, illegal, or incapable of being enforced by any rule of applicable law or public policy, all other conditions and provisions of the Order shall nevertheless remain in full force and effect. Upon such determination that any term or other provision of the Order is invalid, illegal, or incapable of being enforced, such term or other provision shall be replaced with a term or provision that is valid, legal, and enforceable and most closely gives effect to the original intent of the invalid, illegal, or unenforceable term or provision; provided, however, that if such term or provision cannot be replaced in such a manner, then the Parties shall negotiate in good faith to modify the Order so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
- NO WAIVER; REMEDIES
Failure of Buyer to enforce any provision of the Order, or to require performance by Supplier of any provision of the Order, shall not be construed to be a waiver of such provision or of the right of Buyer thereafter to enforce each and every provision of the Order. No delay or omission on the part of Buyer in exercising any right shall operate as a wavier of such right or any other right. A waiver on one or more occasions shall not be construed as a bar to or waiver of any right or remedy on future occasion. The remedies of Buyer under the Order are cumulative, and the exercise of any one or more of the remedies provided under the Order shall not be construed as an election or as a waiver of any of the other remedies of Buyer provided under the Order, existing by law, or otherwise.
- ASSIGNMENT
The Order may not be assigned by Supplier, in whole or in part, except with the prior written consent of Buyer and only then if the assignee agrees to assume each and every obligation of the Order. Any assignment or transfer of any type, without the prior written approval of Buyer made at Buyer’s sole discretion, shall be void and of no effect.
- NOTICES
Any written notice required pursuant to the Order shall be signed, where applicable, by an authorized representative of the sending Party and sent: (a) by registered or recorded delivery or express mail with a receipt confirming delivery to the addresses of the Parties indicated on the Purchase Order, or (b) via email, with emails to Buyer sent to apinvoice@kirby.com and procurement@kirby.com and emails to Supplier sent to the last known contact information on record with Buyer. Any written notice sent by registered or recorded delivery or express mail with a receipt confirming delivery shall be deemed to have been delivered on the date indicated in the delivery receipt, unless that date is a non-business day, in which case the delivery date shall be deemed the next business day. Any written notice sent by email shall be deemed to have been delivered on the day following the date of the transmission, unless the day following the date of transmission is a non-business day, in which case the delivery date shall be deemed the next business day.
The Order contains the entire agreement between the Parties, and no agreement or understanding to modify the Order shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representatives.
