GENERAL, ENTIRE AGREEMENT
As used herein, “Agreement” means the purchase order, these Purchase Order Terms and Conditions and any attachments and documents incorporated herein by reference. These Purchase Order Terms and Conditions set forth the exclusive terms and conditions applicable to all purchase orders issued by Taiho Corporation of America (“TCA”) to a supplier (“Supplier”) for the purchase of goods and/or services. Supplier’s acceptance of any purchase order is expressly limited to the terms of this Agreement and any terms and conditions proposed by Supplier that are different from or in addition to the provisions of this Agreement are expressly rejected, irrespective of the materiality of any such terms or conditions, by TCA and are not and will not form a part of this Agreement. This Agreement will be deemed to be accepted by Supplier and become effective immediately upon the first of the following to occur: (a) the date on which Supplier provides written acceptance to TCA (whether by electronic means or otherwise), (b) Supplier’s commencement of any work under this Agreement, or (c) by accepting any purchase order from TCA. Upon acceptance, Supplier agrees to fully comply with all of the terms and conditions of this AgreementThis Agreement constitutes the entire agreement between Supplier and TCA with respect to the matters contained herein and, except as provided below, supersedes all prior or contemporaneous agreements, orders, quotations, proposals and other communications relating to the subject matter hereof or other communications. This Agreement may be modified only by an amendment issued by TCA.
If Supplier and TCA have entered into a written Supply Agreement, the documents comprising this Agreement shall, to the extent possible, be read together with any written Supply Agreement, Tooling Agreement, or other supplemental agreements governing the long-term supply of goods that are specifically agreed to by Supplier and TCA with respect to the supply of the goods (collectively the “Supply Agreement”), with the objective of giving meaning to all term but, in the event of a conflict, the terms and conditions of the Supply Agreement shall take precedence over these terms and conditions.
TCA reserves the right to revoke and cancel any purchase order without prior notice to Supplier at any time prior to TCA’s receipt of Supplier’s written notice of acceptance of the purchase order. Thereafter, the purchase order may be revoked or cancelled by TCA, in whole or in part, upon reasonable notice to Supplier prior to the date of shipment, for which TCA shall pay to Supplier only those direct out-of-pocket costs reasonably incurred by Supplier in connection with the purchase order prior to Supplier’s receipt of notice of revocation or cancellation. TCA may at any time prior to the date of shipment, upon reasonable notice, modify any term or condition of the purchase order, including, without limitation, specifications, quantity and delivery dates, with an equitable price adjustment for any changes. Notwithstanding the foregoing, if Supplier does not deliver the goods within the time specified herein, time being of the essence with respect to each purchase order, or fails to perform as specified in the purchase order or otherwise breaches or defaults hereunder, TCA may, at its option, approve a revised delivery schedule, require expedited delivery at Supplier’s expense, or revoke and cancel all or any part of the unshipped portion of the purchase order without liability to TCA.
Supplier will comply, in all respects, with TCA’s shipping and packaging requirements and all goods will be packed and shipped in accordance with good commercial practices. Unless otherwise provided in this Agreement, any charges or costs relating to handling, packaging, storage or transportation of goods are borne by Supplier and have been included in the piece price of the goods as set forth herein. Further, Supplier will (a) properly pack, mark and ship goods in accordance with the requirements of TCA, the involved carriers, and laws and regulations of the country of manufacture, the country of destination and any country in which the goods will be transported.
The prices for any goods and services shall be that amount set forth in the purchase order. If price is not stated in the purchase order, it is agreed that the goods and services shall be billed at the price last quoted by Supplier, or billed at the prevailing market price, whichever is lower. Unless otherwise provided in this Agreement, the prices set forth in this Agreement will be exclusive of all transactional taxes, including any sales, use, excise, services, value added tax, goods and services tax, or similar tax.
Payment terms are net 30 days from receipt of the goods or receipt of the correct invoice, whichever is later, unless otherwise specified by TCA in the purchase order. . Invoices shall be submitted for each payment and shall contain such information as TCA shall reasonably require. Payment of invoice shall not constitute acceptance of goods or services by TCA, and shall be subject to adjustment for errors, shortages, defects, or other failure of Supplier to meet the requirements of this order C.O.D. shipments will not be accepted. Supplier will promptly submit correct and complete and other information reasonably required by TCA. Supplier will accept payment by check or other cash equivalent, including electronic funds transfer. In addition to any right of set-off or recoupment provided by law, all amounts due to Supplier will be considered net of indebtedness of Supplier and to TCA; and TCA will have the right to set-off against or to recoup from any amounts due to Supplier from TCA. All prices and payments shall be stated and made in U.S. dollars unless otherwise agreed in writing.
INSPECTION AND ACCEPTANCE
TCA is not obligated to inspect or test any goods and/or services but all goods shall be received subject to TCA’s right of inspection and rejection, performance of which is solely at TCA’s discretion. If inspection discloses that part of the goods received are defective or not in conformance with TCA’s specifications, TCA shall have the right to cancel any unshipped portion of the purchase order.
TRANSFER OF TITLE
Title to the goods will transfer to TCA free and clear of any liens, claims, encumbrances, interests or other rights. Terms of shipment shall be CIF TCA’s plant and title to and risk of loss and/or damage to all goods shipped by Supplier to TCA shall remain with Supplier until the goods are delivered to TCA’s plant.
Supplier will comply with TCA’s quality requirements and procedures. Supplier will promote continuous improvement in the quality of the goods and Supplier’s manufacturing processes. Supplier shall not (a) change the specifications for the good or services, (b) relocate the production, manufacture or assembly of the goods from the facilities approved by TCA, (c) change the location from which the goods are shipped, or (d) subcontract any of its obligations under this Agreement without the prior written consent of TCA. Any such consent of TCA will not release Supplier from, or limit, any of Supplier’s obligations under this Agreement. Supplier warrants and guarantees that any such subcontractor’s performance will satisfy all requirements applicable to Supplier under this Agreement.
PRODUCT WARRANTY; WARRANTY OF PERFORMANCE
Supplier expressly warrants to TCA that the goods and services furnished to TCA pursuant to the purchase order are merchantable; are original goods and not counterfeit goods; conform to the drawings, specifications and standards of TCA and any samples; and will be free of defects in workmanship and material under proper and normal use and otherwise comply with all other warranties implied or provided for by law. In addition, Supplier acknowledges that Supplier knows of TCA’s intended use of the goods covered by this Agreement and warrants that such goods have been selected, designed, manufactured or assembled by Supplier based upon TCA’s stated use and will be fit and sufficient for the particular purposes intended by TCA. Supplier shall perform its obligations in accordance with TCA Supplier’s Quality Manual as in effect from time to time which is incorporated herein by reference. Unless otherwise set forth in this Agreement, the duration of the warranty provided by Supplier to TCA for the goods will begin on the date of receipt of the goods by TCA and end on the later of (a) the date of expiration of any warranty period provided under applicable law for the goods, (b) expiration of any warranty applicable to the goods provided by TCA to TCA’s end customer, or (c) the expiration of any specific warranty period or performance standard provided in any document incorporated by reference into the Agreement, including in TCA’s specifications or quality standards.
TCA shall have all rights and remedies specified hereunder in addition to those specified in the Uniform Commercial Code as adopted in the State of Ohio. The rights and remedies reserved to TCA in this Agreement are cumulative with, and additional to, all other rights and remedies of TCA under applicable law or in equity. No delay or failure by TCA to exercise any right or remedy shall impair in any manner whatsoever any of such rights or remedies or be construed to be a waiver of any breach or acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude other of further exercise thereof or the exercise of any other right or remedy. Without limiting the foregoing, in the event that any goods fail to conform to the warranties set forth in this Agreement or the product specifications incorporated by reference in this Agreement, or if Supplier otherwise breaches any of its obligations under this Agreement,TCA will be entitled to recover from Supplier any and all damages, including, without limitation, any direct, indirect, incidental and consequential damages and all legal and other professional fees and costs incurred by TCA as a result of such breach or failure, including, without limitation, costs, expenses and losses incurred by TCA (a) in inspecting, sorting, testing, repairing or replacing nonconforming goods or nonconforming deliveries; (b) resulting from production interruptions; (c) in conducting recall campaigns or other corrective service actions; or (d) resulting from personal injury, including death, or property damage. If requested by TCA, Supplier will enter into a separate agreement for the administration and processing of warranty chargebacks for nonconforming goods. Supplier agrees to pay all costs and expenses paid or incurred by TCA in enforcing its rights hereunder, including, without limitation, reasonable attorneys’ fees and court costs.
Supplier shall defend, indemnify and hold harmless TCA, it’s officers, directors, agents, stockholders and employees, from and against any and all loss, cost, damage, expense and liability, including reasonable attorneys’ fees, arising out of any breach or alleged breach of any warranty, representation or other provision of the purchase order or arising from death, personal injury or property damage caused by (a) breach of the purchase order, (b) any act of omission of Supplier or its subcontractors or assignees, (c) the goods or services furnished hereunder, or (d) the use or servicing thereof.
INTELLECTUAL PROPERTY RIGHTS
Supplier warrants that the title conveyed to TCA shall be good and merchantable and its transfer rightful; and that the goods and services will be delivered free and clear of any security interest, lien or encumbrance; and that the goods and services delivered hereunder and their use by TCA do not and will not infringe upon any patents, trademarks, copyrights or any other rights of third parties. Supplier will investigate, defend, hold harmless and indemnify TCA, its successors, its affiliates and its dealers and customers against any actual or alleged claims of infringement or other assertions of proprietary rights violations and resulting damages and expenses (including attorney’s and other professional fees) arising in any way in relation to the goods or services. Supplier shall promptly, at its expense and TCA’s option, either (a) procure for TCA the right to continue using such goods and services, (b) replace same with non-infringing goods or services satisfactory to TCA, (c) modify the goods or services in a way satisfactory to TCA so that it becomes non-infringing, or (d) immediately refund all payments made by TCA to Supplier. In addition to the foregoing,
Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that Supplier is unable to produce, sell or deliver, or TCA is unable to accept delivery, buy or use, the goods or services covered by this Agreement, directly as the result of an event or occurrence beyond the reasonable control of such party, without such party’s fault or negligence (a “force majeure event”); provided that written notice of such force majeure event (including the anticipated duration of the delay) must be given by the affected party to the other party as soon as possible (but in no event more than 10 days after the force majeure event occurs). Supplier will use all diligent efforts to ensure that the effects of any force majeure event are minimized and will provide adequate assurance that the delay will not last more than 30 days, resume full performance under this Agreement. If the delay lasts more than 30 days or Supplier does not provide such adequate assurances, TCA may immediately terminate this Agreement without liability to Supplier.
Supplier will maintain insurance coverage with insurance carriers acceptable to TCA and in the amounts set forth elsewhere in this Agreement. Supplier will furnish to TCA either a certificate showing compliance with these insurance requirements or certified copies of all insurance policies within 10 days of TCA’s written request. The certificate will provide that TCA will receive 30 days’ prior written notice of any termination or reduction in the amount or scope of coverage. Supplier’s furnishing of certificates of insurance or purchase of insurance will not release Supplier of any of its obligations or liabilities under this Agreement.
Supplier agrees not to assert any claim (other than a claim for patent infringement) with respect to any technical or other information that Supplier has disclosed or may hereafter disclose to TCA or its affiliates in connection with this Agreement or the goods or services contracted. Any technical or other information provided by Supplier to TCA or its affiliates will not be subject to confidentiality or nondisclosure obligations unless the parties have entered into a separate written confidentiality and nondisclosure agreement signed by their respective authorized representatives prior to the effective date of this Agreement.
COMPLIANCE WITH LAWS
Supplier, and any goods or services supplied by Supplier, and any subcontractor, vendor or agent of Supplier, will comply with all applicable laws, rules, regulations, orders, conventions, ordinances or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods or services, including, without limitation, those relating to environmental matters, the handling and transportation of dangerous goods or hazardous materials, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety and protection of human rights. At TCA’s request, Supplier will certify in writing its compliance with the foregoing. Supplier will indemnify and hold TCA harmless from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to Supplier’s noncompliance.
TCA may terminate all or any part of this Agreement or any purchase order, without liability to Supplier, if Supplier (a) breaches any term of this Agreement (including, without limitation, Supplier’s warranties); (b) states its intention not to perform or otherwise rejects its obligations under this Agreement; or (c) fails to make progress in performance so as to endanger timely and proper completion of services or delivery of goods under this Agreement; provided, however, that if any failure or breach under the foregoing (a) through (c) is curable, TCA will provide Supplier an opportunity to cure within a commercially reasonable period of time under the circumstances, in no case exceeding 10 days after TCA provides notice of the failure or breach to Supplier.
In addition to any other rights of TCA to terminate this Agreement, TCA may, at its option, terminate all or any part of this Agreement before the expiration date set forth in this Agreement, at any time and for any reason, by giving 180 days written notice to Supplier. In the event TCA exercises its right to terminate for convenience under this Section, TCA will pay to Supplier only the following amounts, without duplication: (a) the contract price for all goods and services that have been completed in accordance with this Agreement and not previously paid for; and (b) the actual costs of work-in-process and raw materials incurred by Supplier in furnishing the goods or services under this Agreement, to the extent such costs are reasonable in amount and not in excess of those authorized in TCA’s delivery schedules
TCA may immediately terminate this Agreement without liability to Supplier in insolvency of Supplier, the filing of bankruptcy or other comparable events. Supplier will inform TCA immediately should any of these events occur or Supplier becomes aware of events or circumstances likely to give rise to any such events.
18. GOVERNING LAW AND JURISDICTION. This Agreement and the purchase of goods or services hereunder shall be construed according to the laws of the State of Ohio, without regard to its conflict of laws principles. The parties agree that the United Nations Convention on the International Sale of Goods shall have no application hereunder. Any disputes or claims arising out of or under this Agreement or any purchase order of TCA, or the relationship of the parties, shall be brought exclusively in the state courts located in Seneca County, Ohio, or the federal courts located in the Northern District of Ohio, and Supplier hereby irrevocably consents to the jurisdiction of such courts.
The failure of either party at any time to require performance by the other party of any provision of this Agreement will in no way affect the right to require such performance at any time thereafter, nor will the waiver of either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision.
Under no circumstances may Supplier transfer, assign or delegate, in whole or in part, any of its rights or obligations under this Agreement (including, without limitation, any right of payment), whether directly or indirectly, by merger, acquisition or contribution to a joint venture, without TCA’s prior written consent. A change in the direct or indirect control or ownership of Supplier shall constitute an assignment.
If any provision of this Agreement is declared or found to be unenforceable, the remainder of this Agreement shall be interpreted and enforced to the greatest extent possible as if the unenforceable provision had never been a part hereof.
Supplier may not use any TCA Confidential Information for any purpose other than for the supply of goods or services to TCA pursuant to the terms of this Agreement, and in no event shall Supplier use TCA Confidential Information in furnishing services or goods to any third party, without TCA’s express written consent. Supplier agrees to maintain as secret and confidential, and not to disclose to third parties without prior written consent of TCA, any Confidential Information disclosed by TCA to Supplier. Supplier also agrees to take reasonable care, including all reasonable precautions suggested by TCA, to ensure that such Confidential Information is not revealed to others. For purposes of this Agreement, “Confidential Information” means all information, documents and materials, including if disclosed orally or in tangible or electronic format, received from TCA and/or its parent corporations, their respective affiliates or subsidiaries, or their respective customers, which is not generally known to the public and which TCA or any of the foregoing treat as confidential . Upon termination of this Agreement, Supplier shall return to TCA all such Confidential Information which remains in Supplier’s possession together with all materials disclosing or reflecting Confidential Information or, at TCA’s election, shall certify the destruction thereof and shall not retain any copies or abstracts thereof. The terms and provisions of this Section shall survive the termination of this Agreement.