CHURCH & DWIGHT CO., INC.
ADDITIONAL INSTRUCTIONS, TERMS & CONDITIONS FOR PURCHASES
The purchase and sale of Goods and/or Services pursuant to a Purchase Order (including any repaired or replacement Goods provided, or any Services reperformed, by Supplier thereunder) are subject to the terms and conditions of a written agreement signed by both Buyer and Supplier under which Buyer submits a Purchase Order, or, in the absence of such signed written agreement, the Terms (as defined in Section 2 below). To the extent there is a conflict between the terms of a written agreement signed by both parties or the Terms, the terms of the written agreement shall govern.
"Buyer" Church & Dwight Co., Inc. or its affiliate indicated on the Purchase Order "Goods" The raw materials, equipment, finished goods, parts, components, articles, or other items covered by the Purchase Order, including any Work Product (as defined herein) and other deliverables (if any) delivered in connection with the performance of the Services "Purchase Order" The purchase order issued by Buyer to Supplier "Services" The services, work or other performance obligations covered by the Purchase Order "Supplier" The individual or entity providing the Goods and/or Services covered by the Purchase Order "Terms" These Additional Instructions, Terms & Conditions for Purchases, which may be amended from time to time
The Purchase Order is an offer by Buyer to purchase the Goods and/or Services (as applicable) from Supplier in accordance with and subject to the terms herein and therein. The Purchase Order is not binding on Buyer until it is accepted by Supplier. Supplier will be deemed to have accepted the Purchase Order when it (i) sends Buyer notice of acceptance in writing, (ii) starts to perform the Services in accordance with the terms of the Purchase Order, and/or (iii) delivers any or all of the Goods covered by the Purchase Order, whichever occurs first. Buyer may withdraw the Purchase Order at any time before it is accepted by Supplier. No contract will exist except herein provided.
Supplier's acceptance is expressly limited to these Terms. Any proposal, statement of work, quote, invoice, acknowledgement or other communication issued by Supplier in connection with, or otherwise incorporated by reference into, the Purchase Order will be for the purposes of describing in greater detail the Goods and/or Services (as applicable) to be provided and/or for record and accounting purposes only, and any terms or conditions set forth in such communication will not apply to the Purchase Order and will not be considered to be Supplier's exceptions to these Terms. Any additional or different terms proposed by Supplier (including, without limitation, any terms contained in any document incorporated by reference into the Purchase Order) are objected to and rejected and will be deemed a material alteration hereof, unless expressly assented to in writing by Buyer. Furthermore, Buyer will not be bound by, any "disclaimers" or "click to approve" terms or conditions now or hereafter contained in any website used by Buyer in connection with the Goods and/or Services (as applicable) or the Purchase Order.
The Purchase Order, together with any documents incorporated herein and therein by reference, constitutes the sole and entire agreement of the parties with respect to the purchase and sale of the Goods and/or Services (as applicable), and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Purchase Order.
- Delivery Date.
Supplier will deliver the Goods and/or perform the Services (as applicable) on the date(s) specified in the Purchase Order (the "Delivery Date"). If no delivery date is specified, Supplier will deliver the Goods and/or Services (as applicable) within thirty (30) days of Supplier's receipt of the Purchase Order (which date will be the Delivery Date). Timely delivery of the Goods and/or Services (as applicable) is of the essence. If Supplier fails to deliver the Goods and/or Services (as applicable) in full on the Delivery Date, Buyer may terminate the Purchase Order immediately by providing written notice to Supplier and Supplier will indemnify Buyer and its affiliates and their respective current, future and former officers, employees, directors, agents, customers, successors and assigns (collectively, “Buyer Indemnitees”) against any claims, demands, causes of action, losses, damages, direct and indirect costs and expenses or other liability (including costs of product recall), including reasonable attorneys' fees, (collectively, “Losses”) directly attributable to Supplier's failure to deliver the Goods and/or Services (as applicable) on the Delivery Date. In addition, Buyer has the right to return any Goods delivered prior to the Delivery Date at Supplier's expense and Supplier will redeliver such Goods on the Delivery Date.
- Delivery Location; Shipping Terms.
All Goods will be delivered to, and all Services will be performed at, the address specified in the Purchase Order (the "Delivery Location") during Buyer's normal business hours or as otherwise instructed by Buyer.
Delivery of the Goods (if any) covered by the Purchase Order will be made in accordance with the delivery terms specified in the Purchase Order. If no shipping terms are specified, all deliveries of such Goods to and from U.S. locations will be made DAP Delivery Location (in accordance with Incoterms 2010), and all deliveries of such Goods to and/or from non-U.S. locations will be made DDP Delivery Location (in accordance with Incoterms 2010).
When Goods are delivered to a carrier for transportation, Supplier will give prompt written notice to Buyer and provide Buyer all documents necessary to release the Goods to Buyer.
The "PO Number" indicated in the Purchase Order must appear on all applicable shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
- Title; Risk of Loss.
Title to the Goods covered by the Purchase Order (if any) passes to Buyer upon delivery of the Goods to the Delivery Location. Delivery of the Goods is not complete until such Goods have actually been received and accepted by Buyer. Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
All Goods covered by the Purchase Order (if any) must be packed for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Supplier must provide Buyer prior written notice if it requires Buyer to return any packaging materials. Any return of such packaging materials will be made at Supplier's expense.
The specific quantity of Goods ordered (if any) must be delivered in full and not be changed without Buyer's written consent. If Supplier delivers more or less than the quantity of Goods ordered, Buyer may reject all or any of the Goods. Any such rejected Goods will be returned to Supplier at Supplier's risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods will be adjusted on a pro-rata basis.
- No Exclusivity or Minimums.
The Purchase Order is a non-exclusive agreement. Buyer is free to engage others to provide goods or services the same as or similar to the Goods and/or Services (if any) to be provided under the Purchase Order. Buyer is not obligated to any minimum purchase or future purchase obligations under the Purchase Order.
- Prices; Most Favored Customer.
The price of the Goods and/or Services (as applicable) is the price stated in the Purchase Order (the "Price"). If no Price is specified in the Purchase Order, the Price will be (i) the price set out in Supplier's published price list in force as of the date of the Purchase Order, or (ii) the price last quoted or billed by Supplier at the prevailing market price, whichever is lower.
Supplier warrants that the Prices for the Goods and/or Services (as applicable) to be provided are not less favorable than those currently extended to any other customer for the same or similar goods and services. In the event Supplier reduces its prices for such goods or services prior to accepting the Purchase Order or during the term of performance of the Purchase Order, Supplier agrees to reduce the Prices charged to Buyer accordingly.
Supplier warrants that the Prices shown in the Purchase Order are complete and inclusive of all charges including, without limitation, charges for shipping, packaging, labeling, custom duties, taxes, insurance, storage, boxing and crating.
No additional charges will be added to the Price, nor will any increase in the Price last quoted or charged to Buyer be effective, whether due to increased materials, labor or transportation costs or otherwise, without the prior written consent of Buyer.
- Payment Terms; Late Fees.
Supplier will not issue an invoice to Buyer prior to delivery of the Goods and/or completion of the Services (as applicable) and then only in accordance with these Terms. All invoices and payments hereunder will be denominated in US dollars, unless otherwise required by Law or agreed to by the parties.
Buyer will pay all properly invoiced amounts due to Supplier in accordance with the payment terms specified in the Purchase Order. If no payment terms are specified, Buyer will pay all properly invoiced amounts due to Supplier within seventy-five (75) days after Buyer's receipt of such invoice (or within such shorter period of time as required by Law).
Notwithstanding anything to the contrary contained in this Section, Buyer may withhold from payment any amounts disputed by Buyer in good faith. In the event of a payment dispute, Buyer will deliver a written statement to Supplier listing all disputed items and providing a reasonably detailed description of each disputed item. The parties will seek to resolve all such disputes expeditiously and in good faith. Supplier will continue performing its obligations under the Purchase Order notwithstanding any such dispute.
Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off or recoup, at any time, any amount owing to it by Supplier against any amount payable by Buyer to Supplier.
If Buyer fails to pay any undisputed amount due to Supplier under the Purchase Order by the applicable payment date, then Buyer will be charged such fees and/or interest (if any) as may be imposed by Law; provided that in no event shall interest accrue at a rate in excess of 2% per annum above the Bank of England's base rate from time to time.
Supplier will be solely responsible for maintaining such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by Law or as is the common practice in Supplier's trades or businesses, whichever affords greater coverage. Supplier will provide adequate coverage for any of Buyer's property under the care, custody or control of Supplier. In no event will the foregoing coverage limits affect or limit in any manner Supplier's contractual liability for indemnification under these Terms. Damage to Buyer's premises or manufacturing facilities caused by Supplier's workmen will be repaired to the satisfaction of Buyer at Supplier's expense. Upon request, Supplier will provide Buyer with certificates of insurance or evidence of coverage provided by a carrier, or carriers with an A.M. Best rating of at least A- and stating that Church & Dwight Co., Inc. and its affiliates are Additional Insured.
- General Warranties.
With respect to all Goods (if any) to be delivered under the Purchase Order, Supplier warrants to Buyer that such Goods will (i) be merchantable, (ii) free from any defects in workmanship, materials and design, (iii) be manufactured, packaged, labeled, handled, shipped and stored by Supplier or its agent in a good and workman-like manner at quality levels consistent with industry standards and in accordance with all applicable specifications, drawings, designs, samples and other requirements specified by Buyer, (iv) be fit, safe and effective for their intended uses and purposes, and operate as intended, (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any letters patent, trademark or copyright issued or granted by the United States or Canada or any other intellectual property rights of any third party.
With respect to all Services (if any) to be performed under the Purchase Order, Supplier warrants to Buyer that (i) Supplier will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and in accordance with any and all specifications provided by Buyer, (ii) Supplier will devote adequate resources to meet its obligations under the Purchase Order, and (iii) Supplier's performance of the Services will not infringe or misappropriate any letters patent, trademark or copyright issued or granted by the United States or Canada or any other intellectual property rights of any third party.
Supplier further warrants to Buyer that (i) Supplier's acceptance of, or performance under, the Purchase Order does not result in a conflict of interest between Supplier or any third party, (ii) Supplier has the full legal right to provide all Goods and/or Services (as applicable), and that there is no claim, litigation or proceeding pending or to its knowledge threatened against Supplier with respect to such Goods and/or Services, or any component thereof, alleging infringement of any patent or copyright or violation of any trade secret or any other proprietary right of any person, and (iii) Supplier will obtain and maintain all permits, licenses, and consents required in connection with its performance under the Purchase Order.
All warranties set forth in these Terms will remain in effect for a period of one (1) year from the date of acceptance of the Goods and/or Services (as applicable) by Buyer, and will not be deemed waived by reason of Buyer's receipt, inspection, or acceptance of, or by payment for, the Goods and/or Services (as applicable).
The warranties expressed in these Terms will be in addition to and construed as consistent and cumulative with each other and with all warranties provided, express or implied, by Law or equity (collectively, the "Warranties"). It is the intent of Buyer and Supplier that if any Warranties are held to be inconsistent, Buyer may, at any time, including in the course of a suit for breach, select which Warranty will be excluded from the Purchase Order.
All Warranties will run to Buyer, its customers and subsequent owners of the Goods and/or Services (as applicable) to which they relate. There are no exclusions, limitations, or disclaimers of warranty other than those that may be expressly recited in these Terms. All Warranties will be construed liberally in favor of Buyer.
Notice of breach of warranty may be given orally or in writing; said notice need not include a clear statement of all objections that will be relied upon by Buyer as the basis for breach. All Warranties will be construed as conditions as well as promises.
Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods and/or Services (as applicable) with the foregoing warranties.
- Compliance with Laws.
In performing its obligations under the Purchase Order, Supplier will comply (and will require all of its employees and other agents involved in Supplier's performance under the Purchase Order to comply) with all applicable federal, state, local and foreign laws (including, without limitation, common law), rules, statutes, regulations, ordinances, and other provisions having the full force and effect of law, and orders, policies, judgments or requirements of any governmental or regulatory authority, including, without limitation, those described in greater detail in these Terms (each a “Law” and collectively, “Laws”).
- Manufacturing Practices.
If Buyer advises Supplier that the Goods (if any) to be delivered under the Purchase Order will be used in finished product that is regulated by the United States Food and Drug Administration and/or any other applicable governmental or regulatory authority, then Supplier will follow all current good manufacturing practices stipulated or promulgated by such governmental or regulatory authority, as the same may be changed from time to time, that are applicable to the manufacture, packaging, labeling, handling, shipping or storage of such Goods. In all cases, Supplier warrants that the Goods (if any) to be delivered under the Purchase Order have been manufactured in compliance with the Fair Labor Standards Act and all other applicable Laws.
- Environmental and Safety Compliance.
Any Goods supplied under the Purchase Order (if any), and the manufacture of such Goods, will comply in all respects with the applicable Laws related to the pollution or protection of the environment or human health and safety, including without limitation, the U.S. Toxic Substances Control Act of 1976, as amended (15 USC § 2601, et seq.). Supplier warrants it will notify Buyer in advance of any proposed change in the Goods supplied under the Purchase Order which may alter or add to any of the Chemical Abstract Service (CAS) number(s) for raw materials listed in the Specifications. Any such changes must be mutually agreed upon by Buyer and Supplier prior to shipment to Buyer.
Any Goods supplied under the Purchase Order, and the manufacture of such Goods, will comply in all respects with the Occupational Safety and Health Act of 1970, as amended (29 USC § 651, et seq.) and the applicable requirements of the Occupational Safety and Health Administration.
- Anti-Bribery Compliance.
Supplier acknowledges that Buyer is subject to the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and anti-bribery and anti-corruption Laws in various other jurisdictions. Supplier will (a) comply in all respects with such Laws, including the comparable Laws of all jurisdictions where it or its agents are conducting business, (b) provide written certification of its compliance with the foregoing when asked by Buyer, and (c) cooperate with Buyer and its designees at Supplier's expense in any inquiry or investigation of Supplier or its agents regarding their conduct or alleged conduct relating to compliance or failure to comply with any of the foregoing.
- Child Labor and Forced Labor.
Supplier warrants that it does not employ children, prison labor, indentured labor, bonded labor or use corporal or other forms of mental and physical coercion as a form of discipline. Moreover, Supplier agrees that it will not conduct business with vendors employing children, prison labor, indentured labor, bonded labor or who use corporal punishment or other forms of mental and physical coercion as a form of discipline. In the absence of any national or local Law, Buyer and Supplier agree to define "child" as less than 15 years of age. If local minimum age Law is set below 15 years of age, but is in accordance with exceptions under International Labor Organization (ILO) Convention 138, the lower age will apply.
- Conflict Minerals.
With respect to any and all Goods (if any) delivered under the Purchase Order, Supplier warrants that such Goods will at no time contain any “conflict minerals” (e.g., columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives), sourced from any of the “Covered Counties” (e.g., the Democratic Republic of the Congo) as such terms are defined in the Dodd-Frank Wall Street Reform and the US Consumer Protection. Supplier will immediately notify Buyer if at any time the foregoing representation becomes inaccurate or incomplete.
- Social Responsibility; Company Values
Supplier acknowledges that Buyer conducts its business based on a set of values and guidelines for action and behavior regarding people (including, without limitation, clients, employees, communities impacted by Buyer's business activities, and shareholders) and the environment, as set forth in further detail on Buyer’s website at http://www.churchdwight.com/company/our-values-and-vision/corporate-responsibility.aspx ("Buyer's Values"), and Supplier agrees to conduct its business in compliance with Buyer's Values.
Supplier warrants that it is in compliance with, and requires its employees and permitted subcontractors and any person under its control to comply with, all applicable Laws relating to ethical and responsible standards of behavior, including, without limitation, those dealing with human rights (including, without limitation, human trafficking and slavery), environmental protection, sustainable development and bribery and corruption, including, without limitation, those Laws described in greater detail in these Terms ("Social Responsibility Laws").
Supplier has adopted and implemented appropriate and effective policies and controls to ensure compliance with Buyer’s Values and the Social Responsibility Laws, including: (i) the implementation of due diligence and data collection procedures reasonably designed to monitor such compliance; (ii) the establishment of internal review and accountability structures to oversee compliance; (iii) the coordination of training and instruction for its employees and offering training and instruction to its suppliers and subcontractors regarding compliance; (iv) the requirement that its subcontractors certify their compliance; and (v) the implementation of regular subcontractor audits, either directly or through a third-party auditor, to monitor compliance efforts. In addition, Buyer expects Supplier to adopt its own policy regarding its values and guidelines for action and behavior with respect to people and the environment, and that such policy will be consistent with Buyer's Values.
Any breach of the obligations in this Section will constitute grounds for immediate termination of the Purchase Order for cause by Buyer with notice to Supplier and no compensation, reimbursement or other payment will be due to Supplier. Without limiting Buyer’s aforementioned termination rights, in the event Buyer has a good faith belief that Supplier is not performing its obligations in compliance with Buyer’s Values, Social Responsibility Laws or complying with the policies and controls in place to reasonably ensure compliance with its obligations hereunder, Buyer may (but shall not be obligated to) provide Supplier with written notice of such concerns with reasonable specificity to enable Supplier to conduct an investigation. Within thirty (30) of receipt of any such notice, Supplier shall investigate such concerns and provide to Buyer a written report of such investigation including a response to each concern raised by Buyer, the actions to be taken by Supplier to mitigate such concerns, and the timing for such actions to take place. Supplier will promptly respond to any other questions or concerns raised by Buyer upon receipt of such written report. If Supplier fails to conduct such investigation or does not provide the Buyer with reasonable assurance that Supplier is in compliance with Buyer’s Values, Social Responsibility Laws or the policies and controls in place to reasonably ensure future compliance, then Buyer may terminate the Purchase Order with notice to Supplier and no compensation, reimbursement or other payment will be due to Supplier. Such termination to take effect on the date set forth in the notice.
- Government Contracts.
If Buyer advises Supplier that Goods or Services supplied under the Purchase Order are necessary, in whole or in part, to the performance of a government contract, Supplier agrees to comply with all applicable provisions of that government contract as follows: To the extent not exempt, Supplier shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a) at 29 CFR Part 471, Appendix A. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. Further, Supplier will not discharge or in any manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant.
- Compliance with Privacy and Information Security Requirements.
If Supplier collects, processes and/or stores on behalf of Buyer any personal health information or personally identifiable information (e.g., name, Social Security number, payment card account information, medical information, etc.) (collectively, “Personal Information”), then Supplier shall: (i) process such Personal Information only on behalf of and for the benefit of Buyer, (ii) hold such Personal Information in strict confidence and limit access to those of Supplier’s personnel who have a need to know the Personal Information to perform the Services and who have explicitly agreed in writing to hold such information in confidence; (iii) not transfer Personal Information outside the United States without the explicit written consent of Buyer; (iv) as applicable, implement appropriate measures designed to protect the Personal Information against the specific risks associated with transmission over a network and/or the internet; (v) unless otherwise required by Law, not share, transfer, disclose or otherwise provide access to any Personal Information to any third party, or contract any of its rights or obligations concerning Personal Information to a third party; (vi) comply with (A) all applicable Laws relating in any way to the privacy, confidentiality or security of Personal Information, (B) all applicable industry standards concerning privacy, data protection, confidentiality or information security; and (C) Buyer’s written requirements relating in any way to the privacy, confidentiality and security of Personal Information.
In addition to any other obligation under these Terms, upon the occurrence of a breach involving Personal Information in the possession, custody or control of Supplier or for which Supplier is otherwise responsible, Supplier shall (i) reimburse Buyer on demand for all internal and external costs incurred by Buyer associated with investigating, addressing and responding to such breach, and (ii) indemnify and hold harmless the Buyer Indemnitees from, and at Buyer’s option defend against, any and all losses that Buyer Indemnitees may incur as a result of any violation of this Section by Supplier or its agents.
Supplier agrees to indemnify, defend and hold harmless the Buyer Indemnities from and against any and all Losses arising out of or resulting in any way from (i) Supplier's manufacture and/or supply of Goods to Buyer, (ii) Supplier's performance of Services, (iii) any defect in the Goods, (iv) the negligence or willful misconduct of Supplier, its agents or employees, (v) any claim for bodily injury or death, damage to property or any claim by an employee or subcontractor of Supplier for wages and benefits, (vi) Supplier's breach of any representation, warranty, covenant or other obligation hereunder (including, without limitation, with respect to its compliance with Buyer’s Value’s), and/or (vii) the infringement of any third party proprietary rights with respect to (A) Services performed by Supplier, and/or (B) Goods supplied by Supplier (including, without limitation, with respect to Supplier's manufacture and/or Buyer’s use or possession thereof).
Supplier's obligation to indemnify will survive the expiration or termination of the Purchase Order by either party for any reason. Supplier may, at its option, conduct the defense of any third party action and Buyer will cooperate with Supplier's defense as reasonably requested. If the use or sale of any Goods is enjoined as a result of any action or proceeding, in addition to such other rights or remedies that Buyer may have hereunder or by Law, Supplier, at no expense to Buyer, will obtain for Buyer and its customers the right to use and sell said item, or will substitute an equivalent item, acceptable to Buyer, and extend this indemnity with respect to such item. In the event that Supplier is unable to secure such rights of use or to secure an equivalent item as a substitute for Buyer or its customers, Supplier will indemnify the Buyer Indemnities for any and all Losses sustained by reason of such injunction.
- Limitation of Liability.
BUYER SHALL NOT BE LIABLE TO SUPPLIER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) RESULTING FROM BUYER'S PERFORMANCE OR ANY FAILURE TO PERFORM HEREUNDER INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Inspection; Rejection.
All Goods and Services are subject to Buyer's right of inspection and rejection on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are defective or otherwise do not conform to the descriptions and specifications delivered in connection with in the Purchase Order or otherwise communicated to Supplier in writing. If Buyer rejects any portion of the Goods and/or Services (as applicable), Buyer has the right, effective upon written notice to Supplier, to: (i) rescind the Purchase Order in its entirety; (ii) accept the defective and/or non-conforming Goods and/or Services (as applicable) at a reasonably reduced Price; or (iii) reject the non-conforming Goods and/or Services (as applicable) and require the replacement or reperformance (as applicable) thereof.
If Buyer requires replacement or reperformance of non-conforming Goods and/or Services (as applicable), Supplier will, at its expense, promptly replace or reperform the non-conforming Goods and/or Services (as applicable) and pay for all related expenses, including, but not limited to, transportation charges for the return of the non-conforming Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods or reperform Services (as applicable), Buyer may replace the non-conforming Goods and/or Services (as applicable) with goods and/or services (as applicable) from a third party and charge Supplier the cost thereof and terminate the Purchase Order for cause.
Any inspection or other action by Buyer under this Section will not reduce or otherwise affect Supplier's obligations under the Purchase Order, and Buyer will have the right to conduct further inspections after Supplier has carried out its remedial actions. Acceptance by Buyer will not occur unless and until (i) with respect to Goods installed by Supplier, any acceptance tests or programs described in the Purchase Order or attachments thereto are completed to Buyer's satisfaction, as evidenced by an acceptance certificate signed by Buyer, (ii) with respect to any Services performed by Supplier, such Services are completed to Buyer's satisfaction, as evidenced by any acceptance certificate signed by Buyer, or (iii) with respect to Goods not installed by Supplier, Buyer has not notified Supplier, within thirty (30) days following receipt of the Goods by Buyer, that Goods are defective or otherwise do not conform to Specifications.
- Audit Rights.
Buyer (and its representatives) has the right, during normal working hours and upon reasonable advance notice, to audit Supplier’s facilities and examine Supplier’s books and records to verify compliance with its obligations hereunder, including, without limitation, its compliance with Laws and Buyer’s Values.
- Termination Rights.
Buyer reserves the right to cancel all or any part of the undelivered portion of the Purchase Order if Supplier does not provide conforming Goods and/or Services as specified, time being of the essence, or if Supplier breaches any of the terms hereof including, without limitation, the Warranties.
Buyer further reserves the right to terminate the Purchase Order in whole or in part for convenience upon written notice to Supplier, in which event Supplier will be entitled only to reasonable termination charges consisting of actual direct costs resulting from termination.
- Force majeure.
Neither party will be liable for any delay or failure in performing its obligations under the Purchase Order (including failure to take delivery of the Goods) to the extent that such delay or failure is caused, without such party's fault or negligence, by a Force Majeure Event. For purposes of these Terms, a "Force Majeure Event" refers to the occurrence of unforeseeable and/or unavoidable circumstances beyond a party's control that, by their nature, make such party's performance commercially impractical, including, but not limited to, acts of God or the public enemy, fire, flood, acts of war, government action, accident, earthquakes, explosion, epidemic, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. A party's economic hardship or changes in market conditions are not considered Force Majeure Events excusing such party's performance. Supplier will use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Purchase Order. If a Force Majeure Event prevents Supplier from carrying out its obligations under the Purchase Order for a continuous period of more than thirty (30) days, Buyer may terminate the Purchase Order immediately by giving written notice to Supplier.
- Cumulative Remedies.
Every right and remedy reserved by Buyer will be cumulative and additional to any other or further remedies provided in Law or equity or in these Terms.
If the parties have executed a separate confidentiality agreement (a "CDA"), the terms of such CDA will govern the disclosure and receipt of Confidential Information (as defined in the CDA) by and between the parties. If a CDA is not in effect between the parties, the remainder of this Section will apply.
Supplier agrees to keep all Confidential Information (as defined below) in confidence during and following termination or expiration of the Purchase Order.
Confidential Information includes but is not limited to any and all information or material that is proprietary or commercially valuable to Buyer, including, without limitation, know-how, technical information, data, trade secrets, inventions (whether patented or unpatented), technologies, samples and materials, research or business plans, products, services, customer and supplier lists, operations, manufacturing processes, software, hardware, equipment, databases, discoveries, formulas, diagrams, drawings, graphs, blueprints, specifications, laboratory books, records, designs, analyses, test materials, compounds, computer programs in human or machine-readable code (including notes, spread-sheets and flow-charts), marketing, financial, manufacturing and other business data and projections (including, without limitation, operation costs, profit margins, raw materials, sales information, production and technology costs), unpublished documents, and the contents and existence of the Purchase Order. Confidential Information will include the confidential information of any third party who has given Buyer the right to use such confidential information subject to a non-disclosure agreement between Buyer and such third party. Confidential Information need not be labeled as such to enjoy the protections afforded the same but need only be of the kind generally understood to be confidential, proprietary or commercially valuable.
Confidential Information does not include any information that (i) Supplier lawfully knew without restriction on disclosure before Buyer disclosed it to Supplier, (ii) is now or becomes publicly known through no wrongful act or failure to act of Supplier, (iii) Supplier developed independently without use of Confidential Information, as evidenced by appropriate documentation, or (iv) is hereafter lawfully furnished to Supplier by a third party as a matter of right and without restriction on disclosure. In addition, Supplier may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or Law so long as Supplier provides prompt notice to Buyer of such requirement prior to disclosure.
Supplier agrees not to copy, alter or directly or indirectly disclose any Confidential Information. Additionally, Supplier agrees to limit its intentional distribution of Confidential Information to those who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Supplier of nondisclosure agreements with provisions substantially similar to those set forth herein.
In no event will Supplier use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Confidential Information.
Supplier further agrees not to use Confidential Information except in the course of performing hereunder and will not use Confidential Information for its own benefit or for the benefit of any third party. The mingling of Confidential Information with information of Supplier will not affect the confidential nature or ownership of the same as stated hereunder. Supplier agrees not to design or manufacture any products which incorporate Confidential Information.
The terms of this Section are in addition to, and will complement and supplement any other agreement between the parties regarding confidentiality or security of information, including, without limitation, any applicable CDA.
- Intellectual Property; License.
As between the parties, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Supplier alone or with others which result from or relate to any Services performed under the Purchase Order (collectively, "Work Product"), and all rights with respect thereto, will at all times be and remain the sole and exclusive property of Buyer.
Standard goods manufactured by Supplier and sold to Buyer without having been designed, customized or modified for Buyer do not constitute Work Product and, as between the parties, all rights with respect thereto will remain the sole and exclusive property of Supplier.
The foregoing notwithstanding, Supplier hereby grants to Buyer a non-exclusive, royalty-free worldwide license to use such of Supplier's intellectual property, if any, as is required to give Buyer full benefit of any Goods that incorporate such Supplier intellectual property.
Except as otherwise set forth herein, as between them, each of Buyer and Supplier will retain the sole and exclusive rights in all of its intellectual property.
- Governing Law; Jurisdiction.
The Purchase Order will be governed and construed according to the Laws of the State of New Jersey without regard to principles of conflicts of law. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is hereby expressly waived by the parties and will not apply to the Purchase Order.
Any action brought by either party hereto concerning, or relating to, the Purchase Order shall be brought in the federal or state courts (as applicable) within the State of New Jersey; provided, however, that if (i) the defendant in any such action (A) is not subject to the jurisdiction of the U.S. courts, and (B) refuses to be subject to the jurisdiction of U.S. courts, or (ii) Buyer so elects, then any action shall be finally settled by arbitration in London, England under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those Rules. The arbitration proceedings shall be conducted, and the award shall be rendered, in the English language. Judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitrators shall determine the dispute in accordance with the Laws of the State of New York. The award of the arbitrators shall be final and binding upon the parties. The arbitrators shall have the authority to award equitable relief, attorneys' fees and costs and other relief as may be appropriate.
Neither the Purchase Order nor any of the rights and obligations of Supplier thereunder may be assigned or transferred by Supplier without the prior written consent of Buyer. The Purchase Order will be binding upon and inure to the benefit of parties and their respective successors and permitted assigns and no other person will have any right, obligation or benefit hereunder. Any attempted assignment or transfer in violation of this Section will be void.
- Relationship of Parties.
Supplier is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Neither Supplier nor its employees, agents or subcontractors are agents or employees of Buyer, and are therefore are not entitled to any employee benefits of Buyer, including but not limited to, any type of insurance. Supplier will be responsible for all costs and expenses incident to performing its obligations under the Purchase Order and will provide Supplier's own supplies and equipment. Except as otherwise set forth in these Terms, the manner and means of providing the Goods and/or Services (as applicable) to Buyer are subject to Supplier's sole control.
All notices, requests, demands and other communications that are required or may be given pursuant to the Purchase Order will be in writing and sent by mail, overnight courier or facsimile, to (a) Supplier at the address indicated in the Purchase Order, or (b) Buyer, at the address indicated in the Purchase Order with a copy, which will not constitute notice, to Church & Dwight Co., Inc., 500 Charles Ewing Boulevard, Ewing Township, New Jersey 08628, Attention: General Counsel, or to such other address as one party may later specified to the other party in writing.
Delivery of any such notices will be deemed sufficient in all respects and to have been duly given as follows: (a) on the actual date of service if delivered personally; (b) at the time of receipt of confirmation by the transmitting party if by facsimile transmission; (c) at the time of receipt if given by electronic mail to the e-mail addresses set forth in the Purchase Order or otherwise communicated to the other party; provided, however, that a party sending notice by electronic delivery will bear the burden of authentication and of proving transmittal, receipt and time of receipt; (d) on the third day after mailing if mailed by first class mail return receipt requested, postage prepaid and properly addressed as set forth in this Section; or (e) on the day after delivery to a nationally recognized overnight courier service during its business hours or the Express Mail service maintained by the United States Postal Service during its business hours for overnight delivery against receipt, and properly addressed as set forth in this Section.
- Amendment and Modification.
No change to the these Terms is binding upon Buyer unless it is in writing, specifically states that it amends these Terms and is signed by an authorized representative of Buyer.
Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Purchase Order will operate or be construed as a waiver thereof. Waiver by either party of any default of the other will not operate to excuse the defaulting party from further compliance with this contract, nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The only official version of the Purchase Order, and all communications related to the Purchase Order, will be in the English language.
La version officielle de l’ordre d’achat et toutes les communications liées à la commande d’achat, sera en anglais.
A versão oficial da ordem de compra e todas as comunicações relacionadas com a ordem de compra, será na língua inglesa.
La versión oficial sólo de la orden de compra y todas las comunicaciones relacionadas con la orden de compra, será en inglés.
Die einzige offizielle Version von der Bestellung und alle Mitteilungen im Zusammenhang mit der Bestellung werden in englischer Sprache.
Date Effective: August 29, 2016
Supersedes Version: April 27, 2016