Last Updated: 10/25/2021
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When a purchase order (whether used as an offer, acceptance of an offer, or confirmation of a contract) is submitted by 91次元. (鈥�91次元鈥�), 91次元 submits such purchase order as purchasing agent for an indicated client of 91次元 (the 鈥�91次元 Client鈥�) and such purchase order is conditioned on and limited to the terms set forth herein. By performing or by acknowledging receipt of a purchase order (a 鈥淐ontract鈥�), seller (鈥淪eller鈥�) assents to all the terms and conditions set forth herein. 鈥淲ork鈥� shall mean the goods supplied and/or services performed hereunder. 91次元 and 91次元 Client object to any different, additional or conflicting terms in Seller’s quotations, acknowledgments, acceptances or similar documents. Specifications, drawings and other attachments or documents referred to herein are incorporated into and made a part of the applicable Contract. This Purchase Order will be deemed accepted by Seller by: (i) written confirmation by Seller; (ii) electronic acknowledgement (including an acknowledgement through 91次元’s electronic procurement program); (iii) not being rejected by Seller, in writing, within ten (10) calendar days after receipt by Seller; or, (iv) Seller undertaking to provide the Work.
Seller acknowledges that TIME IS OF THE ESSENCE in the performance and delivery of the Work by the date set forth on the face of the applicable Contract. Failure on the part of Seller to strictly meet 91次元 Client鈥檚 delivery requirements shall give 91次元 and 91次元 Client the right to recover damages from Seller for non-performance, and shall also give 91次元 and 91次元 Client the right to cancel all or part of any applicable Contract. Title to conforming Work shall pass from Seller to 91次元 Client at 91次元 Client’s site or other delivery point specified on the face of the applicable Contract. Notwithstanding any agreement to pay freight, express, or other transportation charges, if any, risk of loss or damage in transit shall be upon the Seller. Passage of title shall not relieve Seller of any of its obligations under the applicable Contract. All purchases under any applicable Contract are subject to 91次元 Client’s inspection and approval. Rejected purchases may, at 91次元 Client’s option, be returned at Seller’s sole expense.
3.1 Seller warrants that the Work will: (a) be of quality, design, material and workmanship, free of defects (and with respect to MRO Supplies that are cast, machined or engineered materials, such warranty shall be for a term ending on the later of one (1) year from date of final payment or the documented date of service), (b) in the case of services, consist of furnishing all operations, labor, equipment, materials and supplies and doing all things necessary for proper performance as described in the applicable听听 Contract, (c) conform to agreed upon specifications, drawings, data and samples and all technical requirements in Seller鈥檚 proposals, (d) be merchantable and fit for the purposes sold, and (e) be free of any lien, attachment, levy claim or security interest or encumbrance of any kind whatsoever.听 This warranty continues in effect after acceptance and is in addition to all warranties offered by Seller or Seller鈥檚 manufacturer. Seller assigns to 91次元 Client all applicable manufacturers鈥� warranties. Seller shall promptly reimburse 91次元 and 91次元 Client for its costs in remedying defects, or, at 91次元 Client鈥檚 option, Seller shall remedy such defects at its own expense and with all possible speed. In addition to its other rights, 91次元 may withhold money otherwise due Seller to cover 91次元鈥檚 and 91次元 Client’s costs and damages. Seller also represents and warrants that Seller has fully disclosed to 91次元 and 91次元 Client all material information known to Seller regarding risks to human and animal health and the environment that may be associated with the use, exposure to, or disposal of Seller鈥檚 materials, goods, and/or services. To the extent applicable, Seller will supply to 91次元 and 91次元 Client material safety data sheets for the Work. Seller to indemnify 91次元 and 91次元 Clients, their officers, directors, employees, agents and representatives from and against any claims, damages, injuries, actions, penalties, fines or liabilities, suffered by 91次元 and/or 91次元 Clients these are caused by defects in the Products provided by such Seller.
3.2 鈥� Seller understands and acknowledge that 91次元 clients can include a manufacturer of coatings for the automotive industry and (B) the performance of client鈥檚 products, including its film-building and adhesion properties, can be significantly influenced by traces of surface-active materials, including silicone compounds, fluorinated materials, greases, oils and surfactants (collectively, 鈥淐ontaminants鈥�).听
3.3 Seller of Products (which for clarity, shall in no case be interpreted to be 91次元) shall provide representations, warranties and covenants concerning the Products that received from such supplier will (A) conform strictly to the general description, model number and specifications stated in the applicable purchase order and in any manufacturer warranties that accompany the Products (the 鈥淪pecifications鈥�), (B) be free from defects in materials, workmanship, and design, (C) be merchantable and fit for their intended purpose, except for Products that are chemicals, which will be merchantable and fit for their intended purpose in making paint or ink, if and as applicable (D) be free of contaminants, and (E) except for chemicals, be of first quality and made of new materials and components.
3.4 Seller of Products to 91次元 Clients for the automotive industry will provide representations and warranties and covenants that (A) Seller shall not introduce or use Contaminants (or lubricants containing Contaminants) in the assembly, manufacture, fabrication, packaging or any other handling of any Products that will be used for making paint or ink, (B) Seller shall take, and shall cause its subcontractors, suppliers and sub-suppliers to take, all necessary actions to prevent the contamination of the Products (during assembly, manufacture, fabrication, packaging and any other handling process) with any substance, including any Contaminant, that is known to negatively impact film-building or adhesion properties, and (C)听 If Seller is uncertain as to whether a substance would be deemed a Contaminant or whether the level of a potential contamination by a Contaminant may have affected the quality of the Products, such Seller shall contact 91次元 (who shall in turn contact 91次元 Client) for advice and approval prior to shipping the Products to the 91次元 Client.
4.1 If the price(s) is not stipulated herein, any applicable Contract is not to be filled at any price(s) higher than the last price(s) previously quoted to 91次元 by Seller. Unless otherwise specified herein, prices are firm for the term of the applicable Contract and in any event may not be increased without prior documented acceptance from 91次元.
4.2 Seller warrants that prices for the Work are not higher than those charged other customers for the same or similar Work in similar quantities. If 91次元 Client can purchase Work of like quality at a lower delivered cost than under the applicable Contract, 91次元 may notify Seller and Seller shall have 15 days to meet such lower cost for an equal quantity of Work. If Seller does not meet such lower cost, 91次元 Client through 91次元 may purchase such Work from the other source and deduct such quantity from 91次元 Client鈥檚 obligation hereunder, but the applicable Contract otherwise remains unaffected.
Unless otherwise specified herein, in the event that Seller is unable to produce/deliver the materials required hereunder by 91次元 Client, through 91次元 due to a circumstance that is not preventable or avoidable, is not due to any negligence or fault of Seller, and which otherwise legally excuses Seller from its’ full performance (e.g. a force majeure circumstance), Seller shall allocate its’ available supply of the material among its’ internal uses and current contract purchasers on a basis no less favorable to 91次元 Client than a pro rata basis.
Upon default by either party in performing any obligation hereunder, the other party may give notice in writing of such default to the defaulting party. Unless the default is cured within fifteen (15) days after giving notice, any applicable Contract may be terminated and cancelled by the party giving notice. Such termination shall not relieve the party in default from any obligations under or from liability for breach of the applicable Contract. Notwithstanding the foregoing, if any material shipped does not conform to its warranties, 91次元 Client may, without prejudice to any of its rights, terminate the applicable Contract without Seller having the right to cure the default. Waiver by either party of a single default, or a succession of defaults, shall not deprive such party of any rights arising by reason of any other default.
Unless otherwise specified in the applicable Contract, payment is due by 91次元 to Seller sixty (60) days after invoice date, or upon completion and delivery of the Work, whichever is later. Payment by 91次元 does not constitute acceptance. Seller鈥檚 invoices shall list taxes separately. 91次元 is liable only for taxes which Seller is authorized to collect from 91次元 Client by law. 91次元 may withhold payment until Seller, if requested, has furnished satisfactory releases of all liens and claims relating to the Work. Seller shall indemnify and defend 91次元 and 91次元 Client from all liens and encumbrances arising out of the Work.
91次元 and 91次元 Client shall have access to Seller鈥檚 facilities to inspect the Work at all reasonable times. No such approval/inspection shall relieve Seller of its obligations. If requested, Seller shall submit drawings and specifications (鈥淒escriptions鈥�) to 91次元 for approval by 91次元 Client. All Descriptions shall be 91次元 Client鈥檚 property, and Seller shall not use or permit others to use such Descriptions for any other work.
9.1 Seller shall indemnify, defend and hold 91次元 and 91次元 Client harmless: (a) from claims for infringement of any patent, copyright, trademark, trade name or other intellectual property right because of the manufacture, use, or sale of the Work, and (b) for any costs, expenses, liability and damages, including attorneys鈥� fees, which 91次元 Client may incur as a result of any alleged infringement. 91次元 or 91次元 Client shall give Seller written notice of any such suit or claim and, at 91次元鈥檚 or 91次元 Client鈥檚 request, Seller shall promptly assume its defense.
9.2 All tools, tooling, dies, molds, patterns, machinery, fixtures, equipment, software, and any other property furnished to Seller by 91次元 Client or on 91次元 Client ‘s behalf by a third party or paid for by 91次元 Client for use in the performance of an applicable Contract shall be and remain the sole property of 91次元 Client, subject to immediate removal upon 91次元 Client ‘s request without legal proceedings, notice or liability, used only in filling orders of 91次元 Client, held at Seller’s risk for any loss or damage, kept insured by Seller while in Seller’s custody or control in an amount equal to the replacement cost thereof, the loss payable to 91次元 Client, and kept free of any lien, attachment, levy, claim or security interest or encumbrance of any kind whatsoever not caused by 91次元 Client. If requested by 91次元 Client, Seller shall execute and return for 91次元 Client ‘s filing, a Uniform Commercial Code Financing Statement -Form UCC-1, acknowledging that any such property is the 91次元 Client ‘s property.
Seller represents that the Work will comply with all applicable federal, state, provincial and local laws, rules, regulations, executive orders, in the United State of America and in Canada, including without limitation compliance with Executive Order No.11246 (Equal Employment Opportunity), Executive Order No.11701 (Listing of Job Openings for Disabled Veterans and Veterans of the Vietnam Era – 41 CFR 60-250.4(M)), Executive Order No. 11758 (Employment of the Handicapped – 41 CFR 60-741.4(F)), Section 211 of Public Law 95-507 and Executive Order No. 12138 (Purchases from Small and Small Disadvantaged Businesses), the Federal Occupational Safety and Health Act of 1970, The Immigration Reform and Control Act of 1986, the Consumer Product Safety Act, the Toxic Substances Control Act, the Federal Hazardous Substances Act, the Fair Labor Standards Act, and 29 CFR Part 471, Appendix A to Subpart A (provided that where necessary to make the context of any law, rule and regulation applicable to this Purchase Order, the term “Contractor” shall mean the Seller and the term “Contract” shall mean this Purchase Order). Seller shall also work in careful, professional workmanlike manner, consistent with industry standard, international human rights and labor conventions. And without child or forced labor.听 Moreover, Seller will consistently act in accordance with 91次元 Client鈥檚 commitment to human rights available at /suppliers-and-partners/join-our-supply-chain-ecosystem/po-terms-conditions/听
91次元 Client may terminate all or part of an applicable Contract for its convenience upon written notice to Seller, which notice may be provided by 91次元. The reasonably charges for the portion of the Work already performed hereunder shall be due upon such termination (to the extent that the Seller cannot otherwise use such work in process in its business or for another customer); any Work so paid for by 91次元 shall become the property of the 91次元 Client. Upon receipt of notice of cancellation hereunder, Seller shall, unless otherwise directed, immediately discontinue all work in process and immediately cancel all orders or subcontracts given or made pursuant to this Contract.
Seller agrees to report promptly to the Vice President, Purchasing/Procurement, of 91次元 Client any solicitation by an employee, agent or representative of 91次元, 91次元 Client or Seller of an offer or gift which is intended to induce or influence the other party to engage in conduct which the Seller believes may be a violation of either 91次元 Client’s or Seller’s internal policies or which could be viewed as corrupt, deceptive or otherwise improper.
Seller may gain information about 91次元鈥檚 or 91次元 Client’s operations, plans, equipment, finances, products, processes, and customers (鈥淐onfidential Information鈥�).听 Seller shall cause all Confidential Information to be kept confidential and shall not be disclosed to others except with 91次元 and/or 91次元 Client鈥檚 prior written consent. Nothing in this paragraph shall prevent Seller from disclosing information which it can show: (a) is published and in the public domain other than through acts or omissions of Seller, its employees or agents; (b) was rightfully made known to Seller by third parties (other than those acting directly or indirectly for 91次元 Client), without restriction on disclosure; or (c) was known at the time of entering into the applicable Contract, and was not acquired from 91次元 Client, or its employees or agents. Seller shall deliver to 91次元 and 91次元 Client, upon request, all drawings, specifications, memoranda, notes, materials and all copies containing 91次元 Client Information. These obligations shall continue beyond the termination of the applicable Contract.
91次元 or 91次元 Client may change specifications, packaging, delivery and transportation requirements at any time by issuing a change order (a 鈥淐hange Order鈥�), which may be issued by 91次元 on 91次元 Client鈥檚 behalf. If the change affects the cost or time required for performance, a fair adjustment will be made and confirmed by 91次元 on 91次元 Client鈥檚 behalf. Seller shall notify 91次元 prior to making any changes to raw materials, methods of manufacture, production equipment or locations involved in the performance of the applicable Contract and shall obtain 91次元鈥檚 written acknowledgement of 91次元 Client鈥檚 consent prior to making any such changes(s). Any applicable Contract may be terminated by 91次元 or 91次元 Client if 91次元 Client does not consent to Seller鈥檚 proposed changes, in which event, 91次元 shall, on 91次元 Client鈥檚 behalf, deliver to Seller a termination notice.
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15.1 Seller shall: (a) comply with 91次元 Client鈥檚 site rules, practices and policies (if Seller enters 91次元 Client鈥檚 premises); (b) indemnify and defend 91次元 Client, its employees and officers against all liabilities and losses of any kind, including costs, expenses and attorneys鈥� fees, due to injuries (including death) or damage to persons or property occurring to or caused by Seller, its agents or subcontractors, or any of their employees, such indemnity to include injuries or damage caused by the joint or concurring negligence of 91次元 Client (but not those caused by the sole negligence of 91次元 Client); (c) maintain the following minimum insurance:听听听 (i)听听听 Workers’听听 Compensation听听听 –听听听 Statutory;听听听 (ii)听听听 Employer’s听听听 Liability听听听 $2,000,000 each accident/disease-each employee/disease – policy limit; (iii) Commercial General Liability (Bodily Injury, Property Damage, Products and Completed Operations and contractual liability on an occurrence form of policy naming 91次元 Client as additional insured) – $2,000,000 each occurrence, combined single limit; (iv) Comprehensive or Commercial Automobile Liability (Bodily Injury or Property Damage for owned, non- owned and hired vehicles and naming 91次元 Client as additional insured) – $2,000,000 each occurrence, combined single limit; (v) Umbrella Liability Insurance – $10,000,000 each occurrence, excess coverage over underlying primary insurance required and naming 91次元 and 91次元 Client as additional insured. Each policy provided by Seller will include an endorsement that the underwriters waive all rights of subrogation against 91次元 and 91次元 Client, its employees and agents.
Seller shall not assign, subcontract or delegate all or any part of the applicable Contract without 91次元鈥檚 or 91次元 Client鈥檚 prior written consent and any attempt to so assign shall be void. Assignment with consent shall not relieve Seller of any obligations hereunder. Seller is and shall remain an independent contractor.
Seller undertakes to comply with all applicable export/re-export laws and regulations regarding the use of the material, technology and know-how received or created under this Contract and the transfer of any immediate products and services based thereon. Specifically, in the previous regard, the Seller shall adhere to the U.S. Exports Administration Laws and Regulations and shall not export or re-export any confidential Information or technical data or products received from the other party or the direct product of such confidential Information or technical data to any country or party unless properly authorized by the U.S. Government. The parties agree that these obligations shall survive the termination of this Contract.
Seller hereby certifies and represents to 91次元 Client that the products do not include any Conflict Minerals or any of their derivative products as those terms are defined in Section 1502 of the Dodd 鈥� Frank Wall Street Reform and Consumer Products Act, and regulations issued thereunder by the Securities and Exchange Commission, (the “Act”) that originated in the Democratic Republic of the Congo or any adjoining country and that said certification and representation are based upon Seller making due inquiry as to the origin of the Conflict Minerals used in the products. Seller further agrees to cooperate with and provide such reasonable assistance to 91次元 Client as may be required by 91次元 Client for 91次元 Client to meet its reporting obligation under the Act.
Any applicable contract shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania.听听 The Parties hereto submit to the exclusive jurisdiction of the courts of the federal and state courts of Philadelphia, Pennsylvania for any dispute relating exclusively to one or more contract for Work to be delivered exclusively in the United State of America.听 Notwithstanding the foregoing, for purposes of Work delivered exclusively in Canada, this agreement shall be governed by the laws of the Province of Quebec and the federal laws of Canada applicable therein.听 Notwithstanding the foregoing, the Parties hereto submit to the exclusive jurisdiction of the courts of the judicial district of Montreal, Province of Quebec for any dispute relating exclusive to one or more Contracts for Work to be delivered exclusively to Canada.听 Any modification, rescission or waiver must be in writing and signed by both parties. A waiver of any breach of these terms shall not waive any other breach. The obligations under sections 3, 6, 7, 8, 9, 10, 12, 13 and 15 of the applicable Contract are of a continuing nature and shall survive any termination of the Contract, any suspension, completion or acceptance of the Work, or final payment to Seller. Seller shall bind all its subcontractors to the terms of the applicable Contract. The failure of either party in any one or more instances to insist on performance of any of the provisions hereof, or any part thereof shall not be construed to be a waiver of such provision, or any part thereof in the future. Any applicable Contract, its performance, any interest herein or in any monies due or to become due herein, may not be assigned or subcontracted by Seller without the prior written consent of 91次元 Client; and such applicable Contract may not be effectively assumed or transferred to another party through a merger between Seller or any subsidiary of Seller and any third party, or through a third party purchasing any controlling interest in Seller. The remedies herein reserved by 91次元 Client shall be cumulative, and additional to any other or further remedies provided in law or equity. All claims for monies due or to become due from 91次元 Client shall be subject to deduction by 91次元 Client for setoff or counterclaim arising out of this or any other of 91次元 Client’s contracts or agreements with Seller. The Contract is executed in English, and in the event an applicable Contract is translated into a language(s) other than English this version in English shall be controlling on all questions or interpretations and performance. The terms and conditions provided herein which shall form part of an applicable Contract, including all documents referenced herein, contains the entire agreement of the parties with regard to the subject matter hereof, supersedes any prior communications, commitments or contracts between the parties relating to the subject matter hereof, and no modification of an applicable Contract shall be of any force or effect unless reduced to a writing that specifically references this Contract, states an express intent to modify or amend such applicable Contract, and is signed by the parties. Seller and 91次元 Client mutually agree that the United Nations Conventions on Contracts for the International Sale of Goods does not apply to the applicable Contract or the sale by Seller to 91次元 Client of the Work.
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