TERMS AND CONDITIONS OF SALE
Any supply or provision of Products and/or Services (as defined below) by the member of the Wavin group indicated on the Purchase Order (as defined below) ("Seller") to the person, or company purchasing the Products and/or Services from Seller ("Customer") (each also referred to as a "Party", and collectively as the "Parties") shall be subject to these general terms and conditions of sale (the "Terms and Conditions") and shall constitute the complete and exclusive agreement between Seller and Customer. Any prior agreements entered into by and between the Parties are superseded by the Agreement (as defined below) and any additional or different terms proposed by Customer (including any general terms and conditions of purchase by Customer) which Customer seeks to impose or incorporate are expressly rejected, regardless of whether Customer refers to such terms in a request for quotation, other communication to Seller or otherwise, and shall not be binding on Seller unless expressly accepted in writing by Seller's authorized representative with specific reference to such term.
1.1 In these Terms and Conditions, the following words and phrases shall have the following meanings:
Agreement: means the Purchase Order as a whole and these Terms and Conditions.
Applicable Law: means any law, statute, order, decree, rule, injunction, license, permit, permission, consent, approval, agreement, regulation, interpretation, treaty, judgment or legislative or administrative action of a competent governmental authority, which applies to the supply or provision of Products and/or Services.
Customer: has the meaning given to it in the introduction.
Prefabricated Products: means any Product prefabricated or assembled in accordance with a specification provided by the Customer.
Products: means goods, materials and other physical items that Seller has agreed to supply to Customer under the Agreement.
Purchase Order: means Customer's order for the Goods or Services submitted in accordance with clause 2 hereof.
Seller: has the meaning given to it in the Introduction.
Services: means the services (including digital services) which the Seller has agreed to perform for the Customer under the Agreement.
Terms and Conditions: has the meaning given to it in the introduction.
1.2 In the Agreement,
(a) A reference to a person includes a natural person or a legal person (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(c) A reference to legislation or a statutory provision is a reference to it as amended or restated. A reference to legislation or a statutory provision includes all concordant legislation made pursuant to such legislation or statutory provision.
(d) Any words included in terms such as: include, in particular, for example, or any similar expression, shall be construed as illustrative and shall not limit the meaning of the words, description, definition, phrase or term preceding such terms.
(e) A reference to writing, or in writing, includes facsimile and electronic mail.
(f) The introduction shall form part of these Terms and Conditions.
1.3 In the event of a conflict between a term in a Purchase Order and these Terms and Conditions, the former shall prevail. In the event of a conflict between a term in a translated Purchase Order and these Terms and Conditions and the English equivalent, the English equivalent shall prevail.
2 Purchase Orders
2.1 These Terms and Conditions apply to each Purchase Order. Any additional or different terms proposed by Customer (including Customer's general terms and conditions of purchase) which Customer seeks to impose or incorporate are expressly rejected, regardless of whether Customer refers to such terms in a request for quotation, other communication to Seller or otherwise, and shall not be binding on Seller unless expressly accepted by Seller's authorized representative, in writing, with specific reference to this clause.
2.2 Customer may submit Purchase Orders for Products and Services to Seller. Each Purchase Order shall be deemed a separate offer by Customer to purchase Products or Services on the terms of the Agreement, which Seller shall have the right to accept or reject at its discretion, even if a quotation from Seller is followed by a Purchase Order from Customer. The Parties shall agree on only one Purchase Order, and an Agreement shall only be constituted, upon the earlier of (a) Seller confirming a Purchase Order issued by Customer in writing, or (b) Seller initiating the execution of such Purchase Order. Notwithstanding the foregoing, Seller may require Customer to order a minimum quantity or minimum order value of Products for each Purchase Order.
2.3 Purchase Orders may not be modified, cancelled or rescheduled without Seller's prior written consent. All Purchase Orders must be in writing and must identify the Products and Services, unit quantities, part numbers, applicable prices and requested delivery dates of the Products or Services being purchased. Seller may designate certain Products and Services as non-cancelable and non-returnable ("NCNR") at its discretion, and the sale of such Products shall be subject to the special terms and conditions contained in Seller's confirmation of a Purchase Order or NCNR letter (as applicable), which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Unless Customer promptly rejects such special terms and conditions, they shall be deemed accepted. Prefabricated Products may not be cancelled or returned under any circumstances.
3.1 The price of the Products and/or Services are the prices set out in the Agreement or, if no price is set out in the Agreement, the price set out in the Seller's published price list in force on the date of the Purchase Order. The Customer shall pay in addition the amounts set out in the Agreement (including those referred to in clause 5.1 and 11 of these Terms and Conditions). If, after the conclusion of the Agreement, there is, for example, a change in raw material prices, labor or manufacturing costs, exchange rate fluctuations, increases in taxes, wages, levies, premiums of any kind, whether or not imposed by the government, the Seller shall be entitled to modify the agreed price unilaterally. If this right is exercised and the Seller wishes to increase the agreed price within three months after the conclusion of the Agreement, the Customer shall have two (2) weeks to terminate the Agreement. The Customer shall not be entitled to claim any compensation from the Seller for this reason. Price quotations shall automatically expire thirty (30) days after the date of issue, or as otherwise stated in the quotation. Customer agrees that Seller may charge a handling fee for Purchase Orders below a minimum quantity or minimum order value, which will be included in the Purchase Order. Seller reserves the right to charge a handling fee for Purchase Orders that are requested to be shipped prior to agreed or published delivery times.
3.2 The price of an Agreement includes and is subject to the understanding that, the supply by Seller of any Products and/or Services under such Agreement to Customer, is not subject to any direct or indirect obligations imposed on Seller and/or any compensation mechanism or industry participation or any other event which results directly or indirectly in an increase in the cost price of the Products and/or Services ("Additional Price Obligations"). In the event that Additional Price Obligations are imposed, the prices and terms and conditions in the Agreement shall be subject to revision and Seller reserves the right to renegotiate the prices and terms and conditions in the Agreement with Customer. Seller has no obligation to supply Products and/or Services to Customer under an Agreement if the Parties do not reach further agreement on revised prices, terms and conditions due to the Additional Price Obligations imposed.
4. Payment Terms
4.1 Payment Due Date. Seller may invoice Customer for the Goods and Services prior to, during or at any time after completion of delivery. Payment shall be due no later than 30 (thirty) calendar days after the date of invoice, unless a different time period is specified on the invoice or communicated to Customer in writing. Partial shipments may be invoiced separately. Seller may send invoices electronically and is not required to provide a hard copy of the invoice.
4.2 Currency of Invoice, Correction and Payment. Payments must be made in the currency specified on the invoice or as set forth in the Agreement, and must be made in full and in cleared funds by electronic funds transfer to a bank account designated in writing by Seller. Unless otherwise agreed in writing by Seller, payment by credit card is not permitted. If Seller establishes a payment gateway, Customer shall pay Seller through such payment gateway, if so directed by Seller. Invoices are deemed accepted three (3) business days after receipt. Seller reserves the right to correct any inaccurate invoice. Any corrected invoice must be paid by the due date for payment of the original invoice or the payment deadline included in the corrected invoice, whichever is later. Customer must pay the undisputed amount of the invoice by the due date for payment of the original invoice or the payment deadline included in the corrected invoice, whichever is later. In the event there is an overpayment, the amount overpaid will be offset against future invoices issued and accepted by Seller or otherwise refunded on terms to be determined by Seller. All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of taxes as required by Applicable Law).
4.3 Late Payment. If Customer fails to timely meet its payment obligations to Seller or any of Seller's Affiliates for any undisputed amounts, regardless of whether set forth in the Agreement or any other contract with Seller or any of Seller's Affiliates, Seller may, at Seller's sole discretion and until all outstanding amounts and late payment charges, if any, have been paid: (1) be relieved of its obligations with respect to conventional warranties, including, without limitation, delivery schedules, support for the provision of spare parts and delivery schedules under any contract (including the Agreement); (2) refuse to process any credit to which Customer may be entitled under any contract (including the Agreement); (3) set off any credit or sum due from Seller or any of Seller's affiliates to Customer against any undisputed amounts due from Customer to Seller or any of Seller's affiliates, including, without limitation, amounts due under any contract (including the Agreement) between the Parties or with Seller's affiliates; (4) withhold performance and future shipments to Customer to which Seller or any of Seller's affiliates are obligated under any contract (including the Agreement); (5) declare Customer in default and terminate the Agreement and any other contract with Seller or any of its affiliates; (6) recover Products for which payment has not been made; (7) deliver future shipments under any contract (including the Agreement) on a cash on demand or cash in advance basis; (8) include late payment charges (default interest) on outstanding amounts or the maximum rate permitted by Applicable Law, for each month or portion thereof; (9) charge storage or inventory holding fees on Products; (10) recover all costs of collection, including but not limited to reasonable attorneys' fees; (11) if Customer fails to pay according to a payment schedule, accelerate all remaining payments and declare the entire outstanding balance then due and payable; (12) implement that any turnover bonus or discount scheme is only due and payable after Customer has fulfilled all of its obligations to Seller; (13) require Customer to pay court and out-of-court costs incurred by Seller, which shall amount to not less than the equivalent of 15% of the outstanding sum; and (14) combine any of the foregoing rights and remedies as permitted by Applicable Law. The foregoing remedies are in addition to all other remedies available at law.
5.1 Terms of Delivery. The parties shall agree in the Purchase Order on the terms of delivery, including the method of delivery. Unless otherwise agreed in the Purchase Order, the terms of delivery are EX Works (Incoterms 2020) to Seller's designated facility. Unless otherwise agreed in writing by the Parties, Customer is responsible for the costs and arrangement of all insurance, transportation, loading and unloading of the Products at the place of delivery, duties, taxes and for completing all export clearance documents. Customer is responsible for all transportation, duties, taxes and other charges to enable import clearance. Customer shall pay all transportation costs (including insurance, duties and taxes) and shall bear the cost of any claims made against the carrier. When Customer arranges export shipment, Customer shall provide Seller with evidence of export acceptable to the relevant tax and customs authorities. The cost of disposable packaging shall be considered included in the price. The cost of reusable packaging is not included in the price and will be charged separately.
5.2 Shipping. Unless Seller agrees in writing to a different delivery date, Seller will schedule delivery in accordance with its published delivery schedule. All shipping and delivery dates are approximate and are based on current availability of material, including raw material, existing production schedules and prompt receipt of all necessary information. Time of delivery shall not be of the essence. Seller shall not be liable for any damage, loss, failure or expense arising from delays in shipment, even when caused by Force Majeure or Customer's failure to provide Seller with adequate delivery instructions or any other instructions relevant to the supply of the Goods or Services. Orders shall be deemed completed upon shipment of the quantity specified in the Purchase Order. Unless otherwise agreed, all Products shall be shipped no later than one year from the date Seller accepts the Purchase Order. Seller may, in its sole discretion, partially fulfill a Purchase Order and allocate Products among its customers. Seller delivers the quantities of Products ordered within the limits of the standard package quantities used by Seller from time to time. If the Parties have agreed in writing that Seller will deliver the Products to a job site, Customer shall ensure that the Products can be delivered to a location on firm ground and in good condition, closest to the site, and Seller may refuse to unload the Products to sites which, in the driver's discretion, are deemed unsuitable (such refusal shall still constitute delivery of the Products in accordance with the Agreement).
5.3 Completion of Delivery. Unless otherwise agreed in writing by the Parties, Customer shall pick up the Products at Seller's designated premises or at such other location as Seller may direct prior to delivery, within three business days following Seller's notification to Customer that the Products are ready. Delivery is complete when the Products are delivered in accordance with the agreed Incoterm or Customer has provided Seller with a duly executed proof of delivery, whichever is earlier. Seller shall not be required to tender delivery of any quantity of Products for which Customer has not provided timely shipping instructions. If Customer fails to perform an obligation to Seller, including providing proof of delivery, or gives Seller good reason to assume that Customer will not perform such obligations, Seller shall be entitled to recover the Products delivered subject to the reservation of title, or cause this to be done, even if they are to be separated from other products, or assess any additional taxes that may be applicable to the specific transaction. The costs of recovery shall be borne by the Customer, without prejudice to any other rights that may be invoked by the Seller. In addition, if Customer fails to accept delivery of the Goods or fails to make arrangements to accept delivery of the Goods or if Customer delays delivery or Seller is unable to deliver due to inadequate access or instructions or if Customer fails to obtain instructions, consents or licenses, delivery shall be deemed to have occurred and Seller may take one or more of the following actions (without prejudice to any other rights or remedies Seller may assert): (a) charge additional charges for the failed delivery; (b) assign new delivery dates; (c) store the Goods in accordance with clause 9; (d) invoice the Customer for the Goods; (e) terminate the Agreement without liability on the part of the Seller; and (f) recover from the Customer all costs and losses incurred by the Seller.
5.4 Ownership and Risk of Loss. Ownership of the Products shall not pass to Customer until Seller receives payment in full (in cash or cleared funds) for the Products and any other products that Seller has supplied to Customer in respect of which payment is due. Until ownership of the Products has passed to Customer, Customer shall (i) store the Products separately from all other property held by Customer so that they remain readily identifiable as Seller's property; (ii) maintain the Products in satisfactory condition and insured against all risks for their full price from the date of delivery.
Customer may resell or use the Products in the ordinary course of its business (but not otherwise) prior to Seller's receipt of payment for the Products. However, if Customer resells the Products prior to that time, Customer does so as principal and not as agent for Seller and ownership of the Products shall pass from Seller to Customer immediately prior to the time of resale by Customer.
Risk of loss shall pass to Customer upon delivery in accordance with clause 5.1, except for export shipments, in which case risk of loss shall pass to Customer upon transfer of ownership.
6. Returns, Refunds and Exchanges
6.1 Returns. Only Products originally shipped by Seller, or an authorized supplier (drop shipment) will be considered for return to Seller. Returns must be requested within 30 days of the date of shipment unless Seller agrees to a longer period in writing. When a customer requests the return of Products to Seller, Customer certifies that the Products were purchased from Seller and that there has been no substitution of the Product by another supplier, distributor or other source of the Product. Any returns must be in the original packaging, unused and in a condition no worse than delivered to Customer, except if approved for failure analysis/warranty evaluation by a Seller's sales representative through a Return Material Authorization (RMA) or equivalent applicable process. Prefabricated Products cannot be returned or exchanged. Customer shall return all reusable packaging to Seller in accordance with instructions provided from time to time by Seller, at Customer's expense.
6.2 Exchanges. Any item to be exchanged must be in its original packaging, unused and in a condition no worse than delivered to Customer. Exchanges must be requested within 30 days of the date of shipment, unless Seller agrees to a longer period in writing. Defective items may be exchanged for the same item. Items purchased from Seller that have been used or altered and any items that have been sold as NC/NR will not be accepted for exchange, which shall include Prefabricated Products.
6.3 Return/Restocking Charge. Seller reserves the right to charge cancellation and restocking fees, at a minimum rate of 15%, to be deducted from Customer's refund. Seller does not reimburse (costs for) original shipping and handling. Customer is responsible for all return shipping charges, subject to applicable legal exceptions. Seller does not accept C.O.D. shipments.
7. Products, Services and Warranty
7.1 Products and Services. Seller's Products are described in Seller's product catalog (as amended from time to time). Seller shall have the right to terminate the manufacture or offering of any Products or Services, or to modify the specification of the Products or Services at any time and at its discretion, provided that Seller shall continue to provide any Products or Services as agreed to in a Purchase Order.
7.2 Warranty. Seller's Products are warranted to be free from defects in material and workmanship for a period of 12 (twelve) months from the date of shipment.
7.3 Defects. If Customer identifies a Visible Defect (as defined in Section 8.1) in a Product and informs Seller of such Visible Defect no later than seventy-two (72) hours from delivery and during the applicable warranty period set forth in Section 7.2, and Seller shall determine, in its sole discretion, whether such Product is defective, and Seller shall, as its sole remedy, repair or replace, in its sole discretion, the defective Product or part. Seller shall in no event be responsible for searching for and finding defective Products (e.g., opening walls to find a defective Product) and/or excavating and removing defective Products or restoring the items in which the Products were installed.
7.4 Products Manufactured by Third Parties. Products that may be manufactured by a third party and sold by Seller under the Agreement shall not be subject to the warranties set forth in this Agreement. To the extent the third party grants any warranty terms to Seller, Seller shall convey the same warranties to Customer, if any.
7.5 Exclusion. Subject to clause 7.9, the warranty referred to in clause 7.2 shall not apply to any defect that Seller determines results from:
i. Loss or damage in transit (where transportation is not at the Seller's expense).
ii. External causes such as accident, abuse, misuse, electrical power problems or damage by animals.
iii. Unreasonable or improper storage, maintenance, handling or installation, including installation other than as recommended by Seller or by a third party.
iv. Any alterations or repairs (or attempted alterations or repairs) made by a Party other than an authorized party.
v. Customer's acts or omissions which expose the installation area where the Products or Services ("System") are used to any environment unsuitable for the same, with the respective specifications, which include, but are not limited to, Customer's use of toxic, corrosive or caustic liquids and/or gases, exposure to severe weather conditions and water;
vi. Any defect or problem caused by any defect in any third party hardware or software used in combination with the System;
vii. Any use other than in accordance with the documentation provided by the Seller.
viii. Defect arising as a result of the Seller applying any drawing, design or specification supplied by the Customer.
ix. Normal wear and tear; and
x. The Goods differ from their description as a result of changes made to ensure that they comply with Applicable Law.
7.6 Disclaimer of Liability. Seller excludes all other warranties, express or implied, including warranties of merchantability and fitness for a particular purpose and/or warranty of non-infringement. Seller shall not be liable to any party under strict liability, tort, contract or otherwise for damages caused or alleged to be caused as a result of any design or defect in Seller's Products. Repair, replacement, partial or full refund is the sole and exclusive remedy available to Customer in the event of defective Products and the consequences thereof.
7.7 The Services provided by the Seller do not carry any obligation to achieve a result and the Seller's liability for the Services and any inaccuracies or omissions in respect of designs, advice, dimensions given, technical data, samples, inspections, drawings, calculations, calculation advice and/or all other documentation provided by the Seller in the context of the Service is excluded in full if no corresponding Purchase Order has been entered into with the Customer in respect of the Service in question or if the Services in question have been provided free of charge.
7.8 The Customer may not invoke a defect in the Services if it did not disclose it to the Seller, in writing, within seven (7) days of the Seller's performance of the Service; or if the Customer could not reasonably have discovered the defect in the Service within this period and did not disclose it, in writing, to the Seller within seven (7) days of discovering the defect in the Service.
7.9 Notwithstanding anything to the contrary in the Agreement, all rights and claims of the Customer in respect of Goods and Services shall, for whatever reason, lapse if (a) the Customer is late in notifying the Seller in accordance with this clause 7; (b) the Seller has not been given an opportunity to investigate the merits of the complaint or have them investigated immediately on the spot; and/or (c) in respect of the Services, twelve (12) months have elapsed after the Seller provided the Service.
7. 10 The Customer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including direct, indirect or consequential losses, loss of profits, loss of reputation and all interest, fines and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller or a member of its group for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Seller's use of materials or specifications provided by the Customer to the Seller, in particular in connection with the prefabrication or assembly of Prefabricated Products.
8. Complaints and Inspection
8.1 At the time of delivery, the Customer must inspect the Products, or arrange for this to be done, in terms of volume, number and defects that can be established during a normal careful inspection (hereinafter "Visible Defects"). In this context, the Customer shall bear the risk of performing a random (and not complete) inspection.
8.2 Any complaints regarding volume, numbers or Visible Defects must be reported in writing to Seller immediately upon delivery and in all cases no later than 72 hours after delivery. Customer must notify Seller in writing of defects other than Visible Defects within seven (7) days of discovery. The report must carefully describe the nature and reasons for the complaint.
8.3 If the Seller delivers the Products upon presentation of a declaration of quality or CE marking regulations or their equivalent under applicable Law and regulations, these Products shall be deemed to be good and sound, except where the Customer provides (technical) proof to the contrary.
8.4 Where applicable, the Seller shall use its best endeavours to ensure that the Products delivered comply with the requirements of the Reach regulation (as amended from time to time) as published on www.echa.europe.eu and all obligations arising from this Reach regulation. However, the Seller shall not be liable to the Customer for any failure by the Seller or any other party to comply with the requirements and all obligations arising under this Reach regulation.
8.5 All rights and claims of the Customer in respect of the payment of a sum of money and/or the repair or return of the relevant Products and/or the making good of a shortfall, for whatever reason, as well as any right of the Customer to terminate the Agreement, shall lapse a) in the event of a late report pursuant to clause 8.2 hereof, b) if the Seller has not had the opportunity to immediately verify the validity of the complaint on the spot, or arrange for this to be done, and/or c) if 12 (twelve) months have passed since the date of delivery.
If the Customer fails to take delivery of the Goods, notwithstanding clause 5.2, and except where such failure or delay is caused by a Force Majeure event (as defined in clause 14), the Seller may store the Goods until delivery is made and charge the Customer for all related costs and expenses (including insurance).
10. Design and Engineering Services
10.1 The Seller shall provide the Services in accordance with the requirements of good and reliable workmanship. The Services shall be based on information provided by the Client, whereby the Client warrants the accuracy and completeness thereof. All consequences of inaccuracy and/or lack of such information are entirely at the Client's risk.
10.2 The Services are always project-specific and are based on the purchase and application of Products produced and/or delivered by or on behalf of the Seller. The Customer is not authorized to use the Services provided by the Seller with the application of third party materials; in any case, the consequences of such action are entirely at the Customer's own risk.
10.3 The Intellectual Property Rights (as defined in clause 18) relating to the Services, including methodologies, techniques, documents and other associated information or know-how, are and remain vested in the Seller. To the extent necessary for this purpose, Customer shall obtain a non-transferable, non-exclusive, royalty-free license to the agreed use of these rights during the term of the Agreement.
11.1 The price does not include taxes. Except as specified in the invoice issued by Seller, Seller's price excludes all taxes (including, without limitation, sales, use, excise, value added and similar taxes), duties and duties (including, without limitation, taxes on the Product(s) or the bill of materials thereof under any Applicable Law (collectively, "Taxes").
11.2 Customer Pays Taxes. Customer shall pay all Taxes resulting from the Agreement or Seller's performance under the Agreement, whether Taxes levied, collected, withheld or assessed now or in the future. If Seller is required to impose, levy, collect, collect, withhold or assess any Taxes on any transaction under the Agreement in addition to the purchase price, Seller will invoice Customer for such Taxes, unless at the time the order is placed, Customer provides Seller with an exemption certificate or other documentation sufficient to verify exemption from Taxes.
11.3 Withholding. If Taxes are required to be withheld from amounts paid or payable to Seller under the Agreement, (a) such withholding amount shall not be deducted from amounts due to Seller under the original price, (b) Customer shall pay the Taxes on behalf of Seller to the appropriate taxing authority in accordance with Applicable Law, and (c) Customer shall send to Seller, within 60 (sixty) days after payment, proof of Taxes paid sufficient to establish the amount of withholding and the recipient.
11.4 Seller Not Liable. In no event shall Seller be liable for Taxes paid or payable by Customer. This clause shall survive expiration or termination of the Agreement.
12. Export Control
Customer agrees to comply with all applicable export laws and regulations, including those of the United States and the United Kingdom, to ensure that Products, parts and technology provided by Seller under the Agreement are not used, sold, disclosed, released, transferred, or re-exported in violation of such laws and regulations. Customer shall not export, re-export or transfer, directly or indirectly, any items or technology provided by Seller under the Agreement to: (a) any country designated under Applicable Law as a "State Sponsor of Terrorism" as described; (b) any person or entity on a blocked, embargoed or prohibited list maintained by a competent authority in accordance with applicable laws; or (c) an end user engaged in any nuclear, chemical or biological weapons activity. If Products or Services to be exported outside the U.S. and/or EU, or other jurisdictions where "dual use" declarations are required by law, are or are likely to be considered "dual use", Customer shall (or shall cause the end user of the Products/Service to) provide Seller, promptly upon request, with an "End User Declaration" in accordance with applicable legal requirements. Seller shall not be liable to Customer for any delay and shall not be in breach of its obligations in the event of Customer's failure or delay in providing such statement.
13.1 Notice of Termination. Either Party may immediately terminate the Agreement by giving written notice to the other Party if:
i. the other Party is in material breach of any term of the Agreement and (if such breach is capable of cure) fails to cure such breach within 30 (thirty) calendar days after written notice to that effect is required to be given.
ii. The other Party fails to make any payment required under the Agreement when due and fails to cure the default within 3 (three) calendar days after receipt of written notice of default; or
iii. Any insolvency or suspension of the operations of the other Party or any petition filed or proceeding brought by or against the other Party under any state, federal or applicable law relating to bankruptcy, composition, reorganization, receivership or assignment for the benefit of creditors or other similar proceedings.
Paragraph: Seller may terminate the Agreement at any time without payment of any compensation by giving 30 business days' written notice to Buyer prior to the effective date of termination.
13.2 Change of Control. In the event of a direct or indirect change in senior management or the power to direct or cause the direction of Customer's management and policies (whether through ownership of voting stock, by contract or otherwise), Seller may terminate the Agreement immediately upon written notice.
13.3 Effect. Termination shall not affect any of the Parties' rights and remedies that vested prior to termination. The termination rights provided in this clause 13 shall not limit the Parties' other rights and remedies as permitted by Applicable Law. Upon termination of the Agreement, Customer shall, at Seller's option, return to Seller or destroy all confidential information of Seller in its possession, and shall provide a certificate from an officer of Customer as to the destruction of all confidential information of Seller within 15 (fifteen) calendar days. Customer shall have no right to use Seller's confidential information after termination of the Agreement.
13.4 Survival. Any provision of the Agreement which is expressly or impliedly intended to take effect or continue in effect on or after termination or expiration of the Agreement shall remain in full force and effect, including, in any event, clauses 1, 7.10, 13.3, 13.4, 16, 17, 18, 18, 19, 20, 21, 22, 27, 28 and 29.
14. Force Majeure/Excusable Delay and No Severe Hardship Clause
14.1 Force Majeure and other Exclusions of Liability. Neither Party shall be liable to the other, nor shall either Party be deemed in breach or default of its obligations under the Agreement to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond the reasonable control of the affected Party, including, but not limited to: (a) natural or man-made disasters, acts of God, acts or omissions of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, serious risk of kidnapping, war (declared or undeclared), armed conflict, acts or threats of terrorism, pandemics, epidemics, quarantines, regional, national or international calamities, civil unrest, riots, severe delays in transportation or inability to obtain necessary materials or raw materials, components or services (all of the foregoing defined as "Force Majeure"); (b) in the case of Seller, acts or omissions of Customer, including failure to timely provide Seller with any access, information, tools, material, including raw materials, and approvals necessary to enable Seller Group to timely perform the required activities, and including, without limitation, unknown physical conditions at the site of an unusual nature and differing materially from those ordinarily encountered and generally recognized as occurring in work of the character contemplated by the Agreement, shall also be considered Force Majeure in favor of Seller. The affected Party shall promptly notify the other Party in the event of a delay under this clause. Delivery or performance dates shall be extended for a period equal to the time lost due to such delay, plus such additional time as is reasonably necessary to overcome the effect of such delay. If Seller is delayed by acts or omissions of Customer, or by the prerequisite work of other contractors of Customer, Seller shall also be entitled to an equitable price adjustment. Under no circumstances shall Customer's payment obligation be deemed excusable under this clause. Customer further represents and acknowledges that its experience and/or skills are such that it will perform its obligations even in cases of Force Majeure to the fullest extent possible and as permitted by Applicable Law.
14.2 Right to Terminate. If a delay arising from the circumstances set forth in this clause 14 extends for more than 90 (ninety) days and the Parties have not agreed upon a revised basis for resuming the work, which may include an equitable price adjustment, either Party (except where such delay is caused by Customer, in which case only Seller), may terminate the Agreement upon 30 (thirty) days prior written notice. In such event of delay, Customer shall pay Seller the pro rata price for all work and activities performed prior to the effective date of termination.
15. Environmental Health and Safety (EHS)
15.1 The Client shall provide a safe working environment. Customer shall take all actions necessary to provide a safe, healthy and secure working environment, including transportation and accommodation, if applicable, for Seller's personnel. The Customer shall inform the Seller of any risks, hazards or changed conditions affecting the health, safety or environment of the worker, including the presence or potential presence of hazardous materials, and shall provide relevant information, including safety data sheets, site safety plans, risk assessments, and job hazard analyses.
15.2 Customer Shall Provide Seller with Site Access and Notification of Applicable Laws. To assess the risks associated with the provision of services and performance under the Agreement, Customer shall provide Seller with reasonable access to examine the site and related equipment. If Seller's work at the site is subject to local, state or national EHS legal requirements that are not reasonably available, Customer shall notify and provide copies thereof to Seller.
16. Limitations of Liability
16.1 SPECIAL OR CONSEQUENTIAL LOSSES. THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES (INCLUDING THIRD PARTY CLAIMS). SELLER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER, SUCH AS (BUT NOT LIMITED TO), DAMAGES FOR DELAY, DAMAGES DUE TO BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF DATA, REPUTATIONAL DAMAGES OR LOST PENALTIES OR FINES, WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER DOCTRINE.
16.2 TOTAL LIABILITY. SELLER'S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT FOR CLAIMS OF ANY KIND (INCLUDING THIRD PARTY CLAIMS) WHETHER IN CONTRACT, TORT, STRICT LIABILITY, STRICT LIABILITY, OR OTHERWISE ARISING OUT OF THE PERFORMANCE/BREACH OR VIOLATION OF THE AGREEMENT, INCLUDING COMPENSATION UNDER THE AGREEMENT, OR THE SUPPLY OF ANY PRODUCT OR SERVICE SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM.
16.3 WILLFUL MISCONDUCT. THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE IN THIS CLAUSE SHALL APPLY ONLY TO THE EXTENT PERMITTED BY APPLICABLE MANDATORY LAW AND SHALL NOT APPLY IN THE EVENT OF INTENT OR WILLFUL MISCONDUCT BY THE SELLER OR ITS MANAGEMENT.
Customer shall release, defend, indemnify and hold harmless Seller, Seller's affiliates and each of their respective officers, directors, managers, employees, representatives and consultants (the "Seller Indemnitees") from and against any and all liability, loss, damages, claims, fines, penalties, judgments, settlements, costs and expenses (including legal fees and expenses), including personal injury or death to Customer's employees or damage to property, arising out of or in connection with the Agreement and Customer's activities in connection with the Agreement, including (a) the handling, storage, marketing, sale, resale, distribution, use or disposal of the Products or Services (whether used alone or in combination with other substances) by Customer or by any third party at Customer's premises or by any third party at any location or (b) Customer's failure to comply with instructions or regulations relating to (product) safety or Applicable Law. This clause shall survive expiration, termination or cancellation of the Agreement.
18. Seller's Intellectual Property Rights
The intellectual property rights of the Seller include, without limitation, all trademarks, trade names, logos, designs, symbols, emblems, distinctive marks, slogans, service marks, copyrights, patents, models, drawings, know-how, information and any other distinctive material of the Seller, the Seller Group and the Orbia Group, whether or not subject to registration or filing, including all registrations or applications to register any of the foregoing; and all rights in the nature of any of the foregoing, and all rights having an equivalent or similar effect, and the right to apply for any of the rights referred to in this definition in any jurisdiction ("Intellectual Property Rights"). Seller retains all Intellectual Property Rights in the Goods and Services, and nothing contained herein shall be construed as granting to Customer any right or license, express or implied, to Seller's Intellectual Property Rights. In particular, Customer shall not use Seller's name, logo or other Intellectual Property Rights without Seller's prior written consent. In addition, Customer shall not do or fail to do anything that may infringe, damage, endanger or impair Seller's Intellectual Property Rights. In particular, Customer shall not: (a) modify, remove or deface any trademark or other means of identification of Goods or Services delivered by Seller; (b) use Seller's Intellectual Property Rights in such a way that their distinctiveness or validity may be affected; (c) use trademarks other than Seller's trademarks with respect to Goods or Services delivered by Seller without Seller's prior express written consent; or (d) use trademarks or trade names similar to Seller's trademarks or trade names that are likely to cause confusion or deception. For the purposes hereof, "Seller Group" shall refer to Mexichem Colombia S.A.S., Pavco de Occidente S.A.S., Celta S.A.S., Wavin BV, its subsidiaries and group of companies, and Orbia Group shall refer to Orbia Advance Corporation, SAB de CV and its subsidiaries and group of companies.
19. Data Privacy
Each Party shall comply with all applicable data protection laws. Unless otherwise agreed by the Parties, Seller (or its subcontractors) shall not process information relating to any identified or identifiable natural person ("Personal Data") for Client or on Client's behalf. In the event that Seller processes Personal Data as part of its own legitimate business purposes, it will do so in accordance with Seller's Privacy Notice which is available at https://pavcowavin.com.co/ley-de-proteccion-de-datos and https://celta.com.co/politica-general-habeas-data.
"Confidential Information" means the terms of the Agreement and all non-public information, technical data or know-how in any form and materials (including samples) relating to the business, Products, Services and/or activities of Seller and/or its affiliates, disclosed or made available to Customer in connection with the Agreement, whether orally or in writing, electronically or otherwise, and whether or not marked as proprietary or confidential, and any information derived from the Confidential Information; provided that the Confidential Information does not include information (i) that is known to Customer at the time of disclosure or lawfully obtained by Customer on a non-confidential basis from a third party; (ii) that is now, or in the future, through no act or failure to act on the part of Customer, known to the general public; or (iii) that is independently developed by Customer without reliance on the Confidential Information, in each case as demonstrated by contemporaneous documentary evidence. Client shall not use the Confidential Information except for the purpose of exercising its rights or performing its obligations under the Agreement (the "Purpose"). Customer shall not disclose the Confidential Information to any third party except to its employees and agents who have a need to know such information for the Purpose and who are subject to written non-disclosure obligations at least as strict as those contained in the Agreement. Customer shall not reverse engineer the Confidential Information, including samples, without Seller's permission. Customer shall take reasonable and prudent security measures to prevent use or disclosure of Confidential Information in violation of this Agreement. Customer shall be responsible for the obligations of its employees and agents under the Agreement and Customer assumes liability for damages arising out of any breach of this Agreement by its employees and agents, which would be a breach of this Agreement if committed directly by Customer, including without limitation, an unauthorized use of Confidential Information. Upon Seller's request, Customer shall promptly return all copies, whether written, electronic or otherwise, of such Confidential Information, or securely remove and destroy the Confidential Information. Notwithstanding the foregoing, Customer may retain a copy of the Confidential Information for records management purposes or copies in company-wide archival backup systems. Notwithstanding the destruction or retention of Confidential Information, Client shall remain subject to its confidentiality obligations hereunder. In the event that Client is required to disclose any Confidential Information by order of a court or any governmental agency, by law, regulation, judicial or administrative process, Client shall: (a) give Seller prior written notice of such disclosure, if legally permitted; (b) reasonably cooperate with Seller, at Seller's request and expense, in resisting or limiting such disclosure or in obtaining a protective order; and (c) in the absence of a protective order or other remedy, disclose only that portion of the Confidential Information that is legally required to be disclosed in the opinion of counsel and ensure that confidential treatment will be accorded to the information disclosed. After termination, Customer's obligations under this Agreement with respect to Confidential Information shall continue in full force and effect as follows: (i) in the case of any Confidential Information that constitutes a trade secret within the meaning of Applicable Law, for so long as such information remains a trade secret; or (ii) in the case of any other Confidential Information or confidential materials, for a period of five (5) years from the date of disclosure. Seller shall be entitled to injunctive relief for any breach or threatened breach of this provision without the requirement to post a bond or prove damages.
21. Customer Data
21.1 Customer owns the Customer Data and the License granted by Seller. Seller acknowledges that, as between Seller and Customer, Customer owns all right, title and interest, including all intellectual property rights, in and to the Customer Data (as defined below). Customer hereby grants to Seller (i) a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to reproduce, distribute, modify and otherwise use and display the Customer Data for internal research and product/service development purposes and to provide Products and Services to Customer, and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to reproduce, distribute, modify and use and display the Customer Data incorporated in the Aggregate Statistics. "Customer Data" means, other than aggregated statistics, information, data and other content, in any form or medium, that is submitted, posted or transmitted or made available by or on behalf of Customer, or a user of Customer's Product or Services that incorporate the product or services that are the subject of the Agreement, from Seller that are generated by the Product or Service or the use of the Product or Service, provided that Customer Data excludes any Personal Data. Nothing in the Agreement shall be deemed to limit the rights granted by the Customer to the Seller in any other agreement.
21.2 Customer Feedback If Customer or any of its employees or contractors suggests or recommends changes to the Product or Services, including but not limited to new features or functionality related thereto, or shares comments, questions, suggestions or the like ("Feedback"), Seller is free to use such Feedback regardless of any other obligations or limitations between the Parties governing such Feedback. Customer hereby assigns to Seller on behalf of Customer and on behalf of its employees, contractors and/or agents, all rights, ownership and interests in and to the Feedback and Seller is free to use, without any attribution or compensation to any Party, any ideas, know-how, concepts, techniques or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Seller is not obligated to use any Feedback.
22. Aggregate Statistics
Notwithstanding anything to the contrary in the Agreement or any other non-disclosure agreement between the Parties, Seller may monitor Customer's use of the Product or Services and collect and compile Aggregate Statistics (as defined below). As between Seller and Customer, all right, title and interest in the Aggregate Statistics, and all intellectual property rights therein, belong to and are retained solely by Seller. Customer acknowledges that Seller may compile Aggregate Statistics based on Customer Data collected from Customer's (or its customers') use of the Product or Services. Customer agrees that Seller may (i) make the Aggregated Statistics available to the public in accordance with Applicable Law, and (ii) use the Aggregated Statistics to the extent and in the manner permitted by Applicable Law, provided that such Aggregated Statistics do not expressly identify Customer. "Aggregate Statistics" means data and information relating to Customer's (or its customers') use of the Product or Services that is used by Seller in the aggregate and does not directly identify Customer, including to compile statistical and performance information relating to the provision and operation of Seller's Product and Services.
23. Compliance with Applicable Law
23.1 Industry Standards The Agreement is based on Seller's design, manufacture, testing and delivery of the Products and Services in accordance with: (i) its own design criteria, manufacturing processes and procedures and quality assurance program; (ii) those portions of the specifications, codes and industry standards in effect on the date of execution of the Agreement that are specified to Seller; (iii) Applicable Law; and (iv) the mutually agreed written terms and specifications set forth in the Agreement. If any of the foregoing changes occur, Seller may unilaterally change the Products and Services to ensure compliance with any of the foregoing. In addition, the Seller shall be entitled to change the agreed price, delivery/performance date or warranties unilaterally. In the event that such change prevents the Seller from performing its obligations without infringing Applicable Law or makes the Seller's performance of its obligations unreasonably burdensome or unbalanced, the Seller shall also be entitled to terminate the Agreement without any liability.
23.2 Compliance with Applicable Laws Without prejudice to any other provision of the Agreement, the Parties shall at all times comply with all Applicable Law in the performance of the Agreement.
23.3 Anti-Bribery and Anti-Corruption. Customer shall ensure that it, its directors, employees or subcontractors shall not offer, promise or give any undue pecuniary or other advantage to Seller's employees or third parties (including public officials) for the purpose of obtaining or retaining business or other improper advantage, in connection with the Agreement. Customer shall comply with all applicable anti-bribery legislation (including, without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act) and shall have implemented appropriate preventative measures to ensure that employees and subcontractors comply with applicable law.
24. Assignment, Novation and Subcontracting
24. 1 The Customer may not assign or novate the Agreement, in whole or in part, including by a change of structure or ownership of the Customer, without the prior written consent of the Seller, which consent shall not be unreasonably delayed or withheld, provided that the Seller shall be entitled to withhold such consent in any event if the assignee/novation transferee lacks adequate financial standing, is a competitor or potential competitor of the Seller or its affiliates, causes the Seller's group to be in breach of Applicable Law and/or fails to comply with the code of ethics. Seller may assign or novate to third parties the Agreement, in whole or in part, and Seller shall notify Customer in writing in such event. The Parties agree to execute such documents as may be necessary to give effect to the permitted assignments or novations set forth in this clause. In the event of a novation or assignment by Customer, Customer shall cause the novation beneficiary/assignee to provide additional payment security upon Seller's reasonable request. Any assignment or novation in violation of the foregoing shall be null and void and of no effect to the Parties.
Seller has the right to subcontract its obligations under this Agreement. The use of a subcontractor shall not relieve Seller of liability under this Agreement for the performance of the subcontracted obligations.
Either Party may at any time propose changes to the Agreement in the form of a draft change request. Neither Party is obligated to proceed with the change request until both Parties agree to such change in writing. Unless otherwise agreed by the Parties, the price for additional work arising from such changes shall be Seller's then current rates for time and materials.
27. Governing Law
The Agreement shall be governed by and construed in accordance with the laws of the jurisdiction in which Seller is incorporated, excluding in any event conflict of law rules. The Parties acknowledge and agree that the applicability of the United Nations Convention on Contracts for the International Sale of Goods (often referred to as the Vienna Sales Convention) is expressly excluded.
28. Dispute Resolution
Unless an arbitration clause has been agreed in the Purchase Order, any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts having jurisdiction in the jurisdiction and district where Seller is incorporated, and the Parties irrevocably submit to the exclusive jurisdiction of such courts for these purposes.
29. General Provisions
29.1 Entire Agreement. This Agreement represents the entire agreement between the Parties and supersedes and extinguishes all prior agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Any prior agreements entered into by and between the Parties are superseded by this Agreement.
29.2 No Oral Modification. No modification, amendment, termination, waiver or other change shall be binding on either Party unless agreed to in writing by its authorized representatives. Each Party agrees that it has not relied upon or been induced by any representation of the other Party not contained in this Agreement.
29.3 Severability. The invalidity in whole or in part of any part of the Agreement shall not affect the validity of the remainder of the Agreement. In the event that any provision of the Agreement is held invalid or unenforceable, only the invalid or unenforceable portion of the provision shall cease to be valid, leaving intact and in full force and effect the remainder of the sentence, clause and provision, to the extent not held invalid or unenforceable.
29.4 Headings. The headings of the clauses and paragraphs herein are for reference purposes only and shall not govern the meaning or interpretation of any provision of the Agreement.