Unless and to the extent that a separately negotiated contract executed between the parties is cited on the procuring party’s purchase order, the following conditions of sale apply to any purchase order covering any products, systems or parts offered for sale (“Product(s)”) by Boeing Distribution Services Inc., and its affiliates and subsidiaries (“Supplier”) to the procuring party (“Buyer”).
2.1 Buyer is not obligated to buy any Products from Supplier, and, Supplier is not obligated to sell any Products to Buyer. If Buyer orders Products from Supplier, and Supplier delivers Products to Buyer, these conditions of sale shall apply to all such purchase and sales transactions.
2.2 Any purchase order covering the sale of Products shall be governed solely by these conditions of sale and any other mutually agreed upon written provisions. Verbal understandings are expressly excluded.
2.3 Supplier’s acceptance of Buyer’s purchase order is made expressly conditional on Buyer’s assent to these conditions of sale and the terms contained in any Supplier purchase order acknowledgement. Supplier’s automated purchase order acknowledgements, if any, do not constitute Supplier’s acceptance. Supplier does not waive any term in these conditions of sale if it fails to object to provisions appearing on, incorporated by reference in, or attached to Buyer’s purchase order, except as provided below, and Supplier expressly rejects such provisions.
2.4 Buyer’s silence, acceptance, or use of Products constitutes its assent to these conditions of sale.
2.5 Any additional or different terms, which may be contained in any documents furnished by Buyer, are deemed material and Supplier hereby objects to and rejects them. Any such additional or different terms are effective only if in writing and signed by an authorized representative of Supplier.
2.6 Buyer’s purchase orders must include and may only serve to specify (i) Supplier’s part number or applicable specifications referenced in Supplier’s quotation, including a general description of the Product; (ii) requested delivery dates; (iii) price; (iv) quantity; (v) location to which the Product is to be shipped; (vi) location to which invoices should be sent for payment; (vii) Buyer’s purchase order number and Supplier’s quotation number, if applicable; (viii) Buyer’s carrier and mode of transportation plus any special routing, packing, labeling, handling or insurance requested by Buyer, if applicable; and (ix) the end-use and end-user, if known, of the Product ordered and whether the Product will be used for military or quasi-military purposes.
2.7 Buyer acknowledges that Supplier is a distributor of Products and that Supplier will be purchasing Products from third parties to the specifications Buyer provides to Supplier. Therefore, Supplier makes no representation about the components, composition or sufficiency of Products to meet Buyer’s needs.
2.8 If Buyer makes known to Supplier a use in relation to Article 37 Section 2 of Regulation (EC) No. 1907/2006/EC concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (the “REACh Regulation”) that results in Supplier incurring obligations under that regulation, Buyer shall indemnify Supplier for any costs or expenses incurred by Supplier that arise out of or in connection with the fulfillment of any such obligations. Supplier shall not be held liable for any delay in delivery arising out of the fulfillment of any such obligations. In case Supplier is not able to, or elects not to, include this use as an identified use under the REACh Regulation, Supplier shall notify Buyer of such decision and in the event that Buyer intends to use the applicable Products against Supplier’s recommendation, Supplier may terminate Buyer’s purchase order with respect to the applicable Products without any liability to Buyer.
3.1 Unless Supplier’s quote states otherwise, prices are quoted in United States of America currency and are valid for Products delivered within ninety (90) calendar days of quotation. Prices do not include any of Supplier’s non-standard costs, including but not limited to, testing, Buyer-specific certification or inspection requirements, etc., unless specifically stated on Supplier’s quotation. Supplier reserves the right to change or withdraw quoted prices until Supplier has accepted Buyer’s purchase order.
3.2 Buyer’s purchase order is subject to Supplier’s minimum order requirements. Supplier reserves the right to limit order quantities for certain Products.
3.3 Prices do not include any taxes or duties on the purchase or sale of Products, including, but not limited to, federal, state, or municipal excise, sales, use or value added taxes or import duties, if any. Any such taxes and duties that may become due and owing shall be paid by Buyer, excluding taxes based upon Supplier’s gross income. Buyer shall reimburse Supplier upon demand for any such taxes, duties or similar charges that Supplier is required to pay or collect.
4.1 Provided Supplier’s credit and collections department has granted credit terms to Buyer, Buyer shall pay Supplier’s invoices within thirty (30) calendar days of their date. Buyer’s payment(s) must be made in United States of America currency and must be accompanied by remittance detail containing at a minimum Supplier’s invoice number and amount paid per invoice. Supplier reserves the right to correct any inaccurate invoices. Payments, without deduction for electronic funds transfer fees, must be in accordance with the “Remit To” field on each invoice.
4.2 Supplier may establish credit terms with Buyer through application to Supplier’s credit and collections department. If applicable, Supplier may re-evaluate Buyer’s credit terms at all times. If Supplier determines in its sole discretion that Buyer fails to qualify for credit terms at any time, then Supplier may, without notice to Buyer, modify or withdraw credit terms, including, but not limited to, requiring advance payment, letters of credit, guarantees, or other security.
4.3 If Buyer is delinquent in its payment obligations to Supplier, Supplier may at its option (i) be relieved of its obligations with respect to guarantees, including without limitation, turnaround times, spares support and delivery lead-times; (ii) refuse to process any credit to which Buyer may be entitled; (iii) set off any credit or sum owed by Supplier to Buyer against any undisputed amount owed by Buyer to Supplier; (iv) withhold future deliveries to Buyer; (v) declare Buyer’s performance in breach and terminate the purchase order; (vi) repossess Products for which payment has not been made; (vii) make future deliveries on a cash-with-order or cash-in-advance basis; (viii) charge interest on delinquent amounts at a rate of one point five percent (1.5%) per month or the maximum rate permitted by law, if lower, for each month or part thereof; (ix) charge storage or inventory carrying fees on Products; (x) recover all costs of collection including, without limitation, reasonable attorneys’ fees; (xi) if Buyer is delinquent on a payment schedule, accelerate all remaining payments and declare the total outstanding balance then due and owing; or (xii) combine any of the above rights and remedies as may be permitted by applicable law. The above remedies are in addition to all other remedies available at law or in equity.
4.4 If Buyer disputes Supplier’s invoice, or any portion thereof, Buyer shall so notify Supplier within ten (10) working days of the date of Supplier’s invoice. Buyer’s failure to provide notification within said period shall be deemed acceptance of Supplier’s invoice by Buyer. The parties will use all reasonable efforts to resolve invoice disputes expeditiously. Notwithstanding any invoice disputes, Buyer shall promptly remit payment for invoices, or portions thereof, not in dispute.
5.1 Supplier will prepare and package Products in accordance with its normal commercial practices. Delivery of Products shall be FCA (Incoterms 2020) Supplier’s facilities worldwide.
5.2 Supplier shall ship Products by the mode and carrier designated by Buyer in accordance with the shipping instructions provided in the applicable purchase order. Where Buyer provides no instructions for the method of shipment, the method of shipment will be at Supplier’s discretion. Supplier will schedule delivery in accordance with its standard lead time unless Supplier agrees in writing to a separate delivery date.
5.3 Supplier reserves the right to make partial shipments against total purchase order requirements and deliver in advance of the scheduled delivery date whenever possible.
5.4 Buyer’s acceptance of late deliveries shall constitute a bar to a claim of late delivery.
5.5 All shipping expenses from the FCA (Incoterms 2020) point to Buyer, including transportation and insurance costs, shall be for the account of Buyer. If Supplier prepays such transportation charges, Buyer shall reimburse Supplier upon receipt of an invoice for those charges.
5.6 Title and risk of loss will pass to Buyer upon delivery in accordance with the applicable delivery term set forth in Section 5.1 above.
5.7 Supplier is entitled to quote additional charges for any rush shipments, special routing, packing, labeling, handling or insurance requested by Buyer.
6.1 Buyer shall inspect Products within a reasonable period, not to exceed ten (10) calendar days, after Buyer receives Products. Products shall be deemed accepted unless Supplier receives written notice of rejection explaining the basis for rejection within such period.
6.2 Once accepted, Buyer’s only recourse or remedy for non-conforming or defective Products shall be as provided in Section 10 below .
6.3 Before acceptance, Supplier may, at its option, either (i) replace rejected Products or (ii) credit Buyer with the purchase price of rejected Products to the extent already paid.
6.4 Following initial delivery, the party initiating shipment will bear the risk of loss or damage to rejected Products in transit, except that Supplier will reimburse Buyer for normal and reasonable surface shipping costs incurred to return properly rejected Products to Supplier’s designated facility.
6.5 If Supplier reasonably determines that rejection was improper, Buyer shall pay all expenses relating to the improper rejection.
6.6 Supplier’s delivery of quantities within five percent (+/-5%) of Buyer’s requested quantities of Products shall be deemed completed purchase orders. For delivery shortages, Buyer may, without further recourse, direct Supplier to fulfill any Products shortfall. Buyer shall return or purchase, at its option, Products delivered in excess of Buyer’s purchase order.
6.7 Buyer shall comply with Supplier’s return material authorization policies and shall ship returned Products to Supplier suitably packed for shipment to prevent damage in transit in accordance with reasonable shipping practices.
7.1 Buyer may cancel a purchase order, in whole or in part, only in the event of a default by Supplier that has not been corrected within ninety (90) calendar days following Supplier’s receipt of Buyer’s written notice stating the nature of Supplier’s default and the corrective action requested.
7.2 Any other changes to a purchase order, including, but not limited to, specification, price, delivery time, or interchangeability of any Product can only be made by a change order signed by the authorized representatives of Buyer and Supplier. Such change order shall include (i) the reason for the change; (ii) a description of the change; (iii) the effect on the specification, price, delivery time and/or interchangeability of the Product; and (iv) the effective date of the change. Supplier will review all Product specification changes requested by Buyer and will promptly advise Buyer whether such a change is technically feasible and, if so, the effect on unit price and delivery schedule.
Supplier owns all rights to all specifications, drawings, engineering instructions, data, material, equipment (e.g., scanners), software, processes, facilities and tooling, including, but not limited to, jigs, dies, fixtures, molds, patterns, taps, gauges, test equipment, manufacturing aids and replacement items, now existing or hereafter created, except to the extent that title is specifically transferred in writing from Supplier to Buyer or originally supplied from Buyer to Supplier.
These conditions of sale do not supersede any confidentiality agreement executed by Buyer and Supplier that otherwise applies to Products, services, technical data or other information delivered in connection with any purchase order. In the absence of such confidentiality agreement, Buyer may use Supplier’s proprietary and/or confidential information (“Proprietary Information”) only in relation to the use of Supplier’s Products by Buyer or for purposes directly relating to these conditions of sale. For purposes of these conditions of sale, “Proprietary Information” shall mean any business records, technical information or data of any kind, including, but not limited to, all financial information, costs, quotations, price lists, designs, specifications, or drawings, that have been disclosed by Supplier, or any other information expressly marked as “Confidential” or “Proprietary” by Supplier or any of its suppliers. Proprietary Information shall remain the property of Supplier and its suppliers. Buyer may only disclose Proprietary Information to its employees on a need-to-know basis, shall protect against its inadvertent disclosure, and shall not disclose Proprietary Information to any third party without Supplier’s prior written consent.
10.1 Buyer acknowledges that Supplier is a distributor of Products and that Supplier will be purchasing the Products from third parties pursuant to the specifications Buyer provides to Supplier. Therefore, Supplier makes no representation about the sufficiency of the Products to meet Buyer’s needs. In purchasing the Products, Buyer is relying on the manufacturer’s specifications only and is not relying on any statements, specifications in brochures, photographs or other illustrations representing the Products that Supplier may have provided.
10.2 PURSUANT TO 14 CFR PART 39, THE OWNER OR OPERATOR OF AN AIRCRAFT IS RESPONSIBLE FOR MAINTAINING THAT AIRCRAFT IN AIRWORTHY CONDITION, INCLUDING COMPLIANCE WITH AIRWORTHINESS DIRECTIVES (“ADS”). BUYER ACKNOWLEDGES AND AGREES THAT SUPPLIER HAS NO DUTY AND UNDERTAKES NO RESPONSIBILITY REGARDING AIRWORTHINESS FOR ANY PRODUCT PURCHASED UNDER THESE CONDITIONS OF SALE. BUYER ACKNOWLEDGES AND AGREES THAT ANY ASSISTANCE SUPPLIER MAY CHOOSE TO PROVIDE WITH RESPECT TO ADS SHALL BE AS AN ACCOMMODATION ONLY AND SHALL NOT IMPOSE ON SUPPLIER ANY LIABILITY OR RESPONSIBILITY FOR ADS COMPLIANCE (SIC). BUYER DISCLAIMS ANY RELIANCE ON ANY ASSISTANCE OR REPRESENTATION SUPPLIER MAY CHOOSE TO PROVIDE, OR NOT PROVIDE, WITH RESPECT TO ADS. BUYER FURTHER ACKNOWLEDGES AND AGREES IT HAS SOLE AND EXCLUSIVE RESPONSIBILITY FOR ENSURING THAT THE PRODUCT(S) IT PURCHASES COMPLIES WITH ALL ADS PRIOR TO USE ON AN AIRCRAFT.
10.3 BUYER ACKNOWLEDGES THAT IT IS PURCHASING THE PRODUCTS FROM SUPPLIER IN SUPPLIER’S CAPACITY AS A DISTRIBUTOR OF SUCH PRODUCTS FOR THE MANUFACTURERS OF SUCH PRODUCTS. SUPPLIER WARRANTS THAT IT HAS TITLE TO OR THE RIGHT TO PROVIDE THE PRODUCTS SOLD TO BUYER UNDER THESE CONDITIONS OF SALE. TO THE EXTENT IT HAS THE RIGHT TO DO SO, SUPPLIER WILL TRANSFER TO BUYER ANY WARRANTIES PROVIDED BY SUCH MANUFACTURERS, AND THE FOREGOING SHALL BE SUPPLIER´S SOLE LIABILITY WITH RESPECT TO THE PRODUCTS PROVIDED HEREUNDER. BUYER ACKNOWLEDGES THAT THE PRODUCT MANUFACTURERS SHALL BE RESPONSIBLE FOR THE RESOLUTION OF ALL WARRANTY CLAIMS AND THAT BUYER WILL LOOK SOLELY TO SUCH MANUFACTURERS FOR SATISFACTION THEREOF. BUYER FURTHER ACKNOWLEDGES THAT SUPPLIER MAKES NO WARRANTIES EXCEPT AS SET FORTH IN THE SECOND SENTENCE OF THIS SECTION 10.3.
10.4 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF SUPPLIER AND THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SUPPLIER, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SUPPLIER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO:
10.5 IN NO EVENT SHALL SUPPLIER’S LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH THESE CONDITIONS OF SALE, OR THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE PRODUCT, EXCEED THE PRICE OF SUCH PRODUCT. THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF BUYER AND THE SOLE AND EXCLUSIVE LIABILITY OF SUPPLIER FOR ANY CAUSE OF ACTION AT ANY TIME, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OF ANY DEGREE) OR OTHERWISE.
10.6 SUPPLIER SHALL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT (WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF SUPPLIER) OR OTHERWISE, FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES.
10.7 For the purpose of this Section 10, Supplier is defined as The Boeing Company, its divisions, subsidiaries and affiliates, the assignees of each, and their respective directors, officers, employees and agents.
Supplier has no control over the technology of the Products sold herein, and therefore cannot and does not indemnify Buyer for claims by third parties that Products infringe any patent, copyright, trademark or trade secret. Supplier’s sole obligation, and Buyer’s only remedy, relating to patent, copyright, trademark or trade secret indemnification is, upon Buyer´s written request, to assign or transfer to Buyer all patent, copyright, trademark or trade secret indemnifications of Supplier’s suppliers and/or manufacturers of Products to the extent such indemnities are assignable.THE INDEMNITY, OBLIGATIONS AND LIABILITIES OF SUPPLIER AND THE REMEDIES OF BUYER PROVIDED IN THIS SECTION 11 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER INDEMNITIES, WARRANTIES (EXPRESSED, IMPLIED OR STATUTORY), OBLIGATIONS AND LIABILITIES OF SUPPLIER AND RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SUPPLIER WITH RESPECT TO ANY PATENT, COPYRIGHT, TRADEMARK OR TRADE SECRET INFRINGEMENT.
Supplier’s sale of Products to Buyer does not convey to Buyer any right or license to any present or future patent, trademark, copyright, trade secret or other intellectual property owned, controlled, or licensed by Supplier (“Intellectual Property”) nor any right to use Supplier’s Proprietary Information which is incorporated or embodied in Products other than as set forth in these conditions of sale. If Buyer engages a third party to manufacture, repair and/or sell any Products which incorporate or embody Supplier’s Intellectual Property and/or Proprietary Information or seeks for itself regulatory approval or certification of any Products from any United States of America or other government agency or authority, such act will constitute (i) an infringement of Supplier’s Intellectual Property, or (ii) an unauthorized use of Supplier’s Proprietary Information, and injunctive relief shall be the specific remedy therefor, in addition to all other remedies available at law or equity.
Buyer shall defend, indemnify and hold harmless Supplier, its affiliates and subsidiaries and their directors, officers, employees and agents from and against any and all claims, suits, damage, loss, liability, cost or expense (including, without limitation, reasonable attorneys’ fees and expenses) resulting from, arising out of, or relating to, directly or indirectly, these conditions of sale, Buyer’s activities or contractual relationships with third parties with respect to these conditions of sale, or the installation, operation, use, maintenance, repair or modification of Products, other than such claims as arise from the gross negligence or willful misconduct of Supplier.
Supplier shall not be liable to Buyer for any failure to meet its obligations due to any cause beyond Supplier’s reasonable control and not occasioned by its fault or negligence (an “Excusable Delay”). Excusable Delay events may include, but are not limited to, (i) delays or refusals to grant an export license or the suspension or revocation thereof; (ii) any other acts of any government that would limit the ability for rformance; (iii) fires, earthquakes, floods, severe weather conditions, or any other acts of God; (iv) quarantines or regional medical crisis; (v) labor strikes or lockouts; (vi) riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war, declared or not (or impending threat of any of the foregoing, if such threat might reasonably be expected to cause injury to people or property); and (vii) shortages or inability to obtain materials or components. If an Excusable Delay event causes a Supplier delay, then the date of Supplier’s performance shall be extended by the period of such delay or Supplier may cancel Buyer’s purchase order with respect to such delayed Products.
Buyer shall not disclose to any third party the existence of, or any information concerning, the transaction contemplated hereby, nor any pricing of Products offered hereunder, without first obtaining the written consent of Supplier, unless required by law.
Buyer shall not assign any rights nor delegate any obligations under these conditions of sale or any portion thereof in whole or in part, by operation of law or otherwise, without Supplier’s advance, written consent which will not be unreasonably withheld. Any attempt to assign or delegate in violation of this Section 16 shall be void.
Notices or non-routine communications between the parties, other than purchase orders, will be in writing, sent by prepaid overnight courier service and shall be effective upon receipt by the party to which notice is given. Notices shall be addressed to the following respective addresses of the parties, or such other addresses as the parties may designate by notice from time to time: If to Supplier: The address indicated on Supplier’s quotation or the applicable Supplier facility to which the purchase order was sent. If to Buyer: To Buyer’s address on its purchase order.
The failure or delay of Supplier to enforce any of the provisions of these conditions of sale shall not be construed to be a continuing waiver of any provisions hereunder nor shall any such failure prejudice the right of Supplier to take any action in the future to enforce any provisions hereunder.
Buyer represents and warrants that it shall comply in all respects with all applicable laws, rules, regulations, ordinances, proclamations, demands, directives, or other legal requirements that now govern or may hereafter govern the Products. Buyer agrees upon request to furnish Supplier with a certificate of compliance relating to any such laws and regulations in such form as Supplier may require. Buyer agrees to indemnify and hold Buyer harmless from any liability arising from any failure of Buyer to comply with such laws and regulations.
20.1 Buyer represents and warrants that it shall comply with all applicable import and export control laws and regulations, including, without limitation, the United States Export Administration Regulation (“EAR”), the United States International Traffic in Arms Regulations (“ITAR”), the United States Office of Foreign Assets Control Regulations, the United States Foreign Trade Regulations, European Union and country-specific import and export regulations including EU and/or country-specific sanctions regimes, and other applicable laws and regulations, and shall retain documentation evidencing such compliance. Buyer shall obtain import and re-export approvals and licenses required for Products, transfers, services and technical data delivered and shall retain documentation evidencing compliance with those laws and regulations. Buyer agrees to indemnify and hold Supplier harmless from any fines, penalties, or other liability imposed by any government entity arising from any failure of Buyer to comply with such laws and regulations.
20.2 Supplier will deliver Products cleared for export, but Supplier shall not be liable to Buyer for any failure to provide Products, services, transfers or technical data as a result of government actions that impact Supplier’s ability to perform, including, but not limited to, (i) any governmental failure to provide, or the cancellation of, export or re-export licenses; (ii) any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after the date of any order or commitment that has a material adverse effect on Supplier’s performance; or (iii) delays due to Buyer’s failure to follow applicable import, export, transfer, or re-export laws and regulations or to assist Supplier in acquiring same. Buyer shall not be relieved of its payment obligations if any of the above events occur.
20.3 If Buyer designates the freight forwarder for export shipments, then, unless otherwise instructed or notified by Supplier, Buyer’s freight forwarder shall export on Buyer’s behalf and Buyer shall be responsible for any failure of Buyer’s freight forwarder to comply with all applicable export requirements. Supplier will provide Buyer’s designated freight forwarder with required commodity information.
20.4 Where Buyer holds the design authority for a Product or otherwise possesses the relevant export classification for a Product, Buyer shall provide Supplier with the relevant export classification data, such as, inter alia, classification numbers according to EU and/or country specific Military Lists, classification numbers according to Annex 1 of Regulation No. (EU) 2021/821 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (“European Dual Use Regulation”), Export Control Classification Number (“ECCN”), Harmonized Tariff Schedule (“HTS”) code or International Traffic in Arms Regulations (“ITAR”) classification, as applicable. At Supplier’s request, Buyer shall complete all questionnaires and forms requested by Supplier, including Supplier’s Form QAF-172 “Export Control Classification” Form and Supplier’s Form QAF-230 “End User Statement” Form to facilitate the exports of Products in accordance with all applicable laws and regulations. Buyer may access such forms at http://www.boeingdistribution.com/aero/supplier-resources/supplier-communications.Buyer shall provide updates to Seller in a timely manner as changes occur.
21.1 Buyer represents and warrants that it shall comply with all applicable laws, regulations and other statutory instruments of the European Union which impose product-related, packaging or labelling requirements to the Products or their constituent substances or mixtures, including, but not limited to, and where relevant the REACh Regulation, Regulation (EC) No. 1272/2008 on classification, labelling and packaging of substances and mixtures, Directive (2011/65/EU) on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment, Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment and Regulation (EU) 528/2012 concerning the placing on the market and use of biocidal products.
21.2 Buyer represents and warrants that it shall comply with all applicable United States federal, state and local laws and regulations governing (i) the discharge, transportation, use, handling, storage and disposal of hazardous substances, including, but not limited to, the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act (“RCRA”) and the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”); (ii) the transportation and importation of industrial chemicals, including the Toxic Substances Control Act (“TSCA”) and any similar laws requiring tracking, testing or the ban on use of chemicals; (iii) the sale of products containing ingredients such as phosphorous, volatile organic compounds, or other ingredients such as the State of California’s Proposition 65 that require disclosure of specified listed ingredient chemicals on labels of products; and (iv) the use of pesticides and other products such as the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”), requiring registration of products, toxicity and labeling requirements and registration fees, and the payment of taxes on the sales of those products in certain states.
21.3 Buyer agrees to indemnify and hold Supplier harmless from any fines, penalties or other liability imposed by a government entity or third party arising from any failure of Buyer to comply with such laws and regulations as noted above in Section 21.1 and Section 21.2. Buyer shall retain documentation evidencing compliance with the laws and statutory instruments listed above in Section 21.1 and Section 21.2, where applicable.
22.1 These conditions of sale and the transactions arising out of or related to Buyer’s purchase order will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to conflicts of law principles. This choice of the governing law shall also apply to non-contractual claims, including tort claims, arising out of or related to Buyer’s purchase order. The United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto, shall not apply. To the fullest extent permitted by law, Buyer hereby unconditionally and irrevocably waives any claim to assert that the law of any other jurisdiction governs these conditions of sale and the transactions arising out of or related to Buyer’s purchase orders.
22.2 Venue and jurisdiction for all legal proceedings of any kind or nature brought to enforce or relating to or arising from any provisions of these conditions of sale or the transactions arising out of or related to Buyer’s purchase order shall lie exclusively within the courts of the State of Delaware and of the United States of America located in such state, and Buyer hereby irrevocably submits to the exclusive jurisdiction of such courts in any such legal proceedings, and hereby expressly and irrevocably waives its rights to any other jurisdiction that may apply by virtue of its present or future domicile or for any other reason. This choice of jurisdiction shall also apply to legal proceedings of any kind or nature brought to enforce any non-contractual claims, including tort claims, arising out of or related to Buyer’s purchase order.
22.3 If Buyer is organized outside the United States of America, to the extent that Buyer or any of its property is or becomes entitled at any time to any immunity on the grounds of sovereignty or otherwise from any legal action, suit or proceeding, or other legal process in any jurisdiction, Buyer for itself and its property does hereby irrevocably and unconditionally waive, and agrees not to assert, plead or claim, any such immunity with respect to its obligations, liabilities or any other matters resulting from or arising under or in connection with these conditions of sale and the transactions arising out of Buyer’s purchase order. Nothing in these conditions of sale ought be construed as excluding any mandatory local law which cannot be excluded.
Buyer shall not set off any amount, whether or not liquidated, against sums Buyer asserts are due to Buyer, Buyer’s parent, subsidiaries, affiliates or other divisions or units under any transaction with Supplier, Supplier’s parent, subsidiaries, affiliates or other divisions or units, whether under these conditions of sale or otherwise.
All provisions of these conditions of sale which by their nature should apply beyond completion of Buyer’s purchase order shall remain in force after the expiration or any termination of these conditions of sale.
If any provisions of these conditions of sale are at any time held to be invalid or unenforceable, such provisions shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of the provisions which shall remain in full force and effect and, in lieu of the invalid or unenforceable provisions, there will be added as part of these conditions of sale one or more provisions as similar in terms as may be valid and enforceable under applicable law.
Except as expressly provided to the contrary in these conditions of sale, the provisions of these conditions of sale are for the benefit of the parties hereto and not for the benefit of any third party.
The parties acknowledge that they are independent contractors and no other relationship, including without limitation partnership, joint venture, employment, franchise, master/servant or principal/agent is intended by these conditions of sale. Neither party has the right to bind or obligate the other party.
Headings and captions are for the convenience of reference only and do not alter the meaning or interpretation of these conditions of sale.
Buyer represents and warrants that no purchases of Products hereunder shall be used in the performance of a contract or subcontract with any government in a manner to affect Supplier’s rights to data, technology, software or other intellectual property supplied by Supplier.
If a U.S. Government contract is referenced on the face of Buyer’s purchase order, then only the procurement regulations applicable to the acquisition of “Commercial Items,” apply, as that term is defined in 48 C.F.R. (“FAR”) 2.101. In addition, they do so with the same force and effect as if set forth verbatim herein. As prescribed in FAR 44.403/52.244-6 and Defense Federal Acquisition Regulation Supplement (“DFARS”) 244.403/252.244-7000 (Subcontracts for Commercial Items and Commercial Components (DoD Contracts)), with respect to the procurement of Commercial Items, the following federal procurement regulations (in effect on the date of Buyer’s purchase order) are incorporated into these conditions of sale by reference, as applicable:
No other FAR or DFARS apply with regard to Buyer’s procurement of Products from Supplier.
Notwithstanding anything in these conditions of sale to the contrary, if these conditions of sale include any clause of the Federal Acquisition Regulation or any supplement thereto (DFARS, NASA FAR Supplement (“NFS”), etc.) that incorporates the Buy American Act (“BAA”), Buyer agrees that Supplier may assume that the Products being purchased hereunder will be used by Buyer as subcomponents of one or more Components (as defined in 48 C.F.R. § 25.003) and that Buyer does not require any specific countries of manufacture or production for the Products being purchased hereunder or their parts or materials, unless prior to entering into this agreement: