TERMS AND CONDITIONS OF PURCHASE
Last Updated: 04-12-2021
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1. Offer/Entire Agreement/Acceptance. This purchase order (the “Purchase Order” or “PO”) is an offer by the buying entity listed on the face of the PO (together with its parent companies, subsidiaries and affiliates, “Buyer”) to buy the products or services described on the PO, in accordance with all specifications and data submitted to Seller herewith (“Products” or “Services”), from the supplier named in the PO (“Supplier” or “Seller”), subject to the terms and conditions of the PO. Any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter hereof, including, but not limited to, commencement of work on, or shipment of, any of the Products or performance of any of the Services described on the PO, shall be acceptance by Seller of the PO and all of the terms and conditions contained herein. The terms and conditions of the PO shall constitute the entire agreement between the parties on the subject matter hereof, superseding all prior communications and negotiations. Any acceptance of the PO is subject to acceptance of the express terms and conditions of the offer set forth herein. There are no terms or conditions affecting the PO not set forth herein, and any terms or conditions proposed by Seller which add to, vary from, or conflict with the terms and conditions set forth herein are hereby objected to and rejected by Buyer, and such terms and conditions shall be void and of no effect.
2. Pricing. All prices are firm for the term or quantity specified on the face of the PO, and Seller may not add charges of any type unless specifically provided for on the face of the PO. Except as otherwise expressly set forth on the face of the PO, Buyer shall not be liable for, and Seller shall be responsible for, any federal, state, local, provincial or foreign or other taxes, duties, customs or assessments of any kind in connection with the manufacture, sale, purchase, transportation, import/export, use or possession of the Products or Services.
3. Payment Terms. Unless otherwise specified herein, payment terms are sixty (60) days from date of (a) invoice or (b) receipt of the Products or completion of the Services, whichever is later. Buyer shall be entitled to set off any amount owing at any time from Seller to Buyer against any amount payable by Buyer to Seller.
4. Delivery/Performance. Seller shall deliver the Products and perform the Services within the time, which is of the essence, in the quantities and at the prices specified in the PO, in any document attached to the PO by Buyer or referred to in the PO or in any updated delivery schedule provided by Buyer under such PO. Buyer accepts no responsibility for Products shipped in excess of the quantities specified in the PO, and any such excess may, at Buyer’s option, be returned to Seller at Seller’s expense.
5. Packing and Shipping. All Products shall be suitably packed, marked conspicuously with Buyer’s PO number and shipped in accordance with (a) shipping instructions specified in the PO, (b) the requirements of common carriers so as to obtain the lowest transportation cost and (c) all applicable legal and regulatory requirements.
6. Inspection. All Products and Services are subject to final inspection and approval at Buyer’s facility or other place designated by Buyer. Notwithstanding any payment that may be made, no Products or Services are deemed accepted until Buyer has had a reasonable opportunity to inspect them. Buyer’s inspection before, during or after manufacture and delivery or performance shall not constitute a waiver of a subsequent rejection of any such Products or Services by reason of undiscovered or latent defects.
7. Rejection. Buyer may return rejected Products at Seller’s expense. Seller shall not replace Products returned as defective unless directed by Buyer in writing.
8. Risk of Loss. The risk that Products may be lost, damaged or delayed in transit shall be borne by Seller until actual receipt of them by Buyer in conformity with the terms of the PO. Title to the Products shall transfer to Buyer upon actual receipt.
9. Changes. Buyer may change drawings, specifications, quantities, delivery schedules, place of delivery or performance, or methods of shipment or packaging or performance on any of the Products or Services at any time and Seller agrees to make such changes. If such changes result in an increase or decrease in cost, an equitable adjustment of price may be made. Seller must assert claims for equitable adjustment within ten (10) days of the change order, and such claims are hereby waived by Seller after such time.
10. Warranties/Remedies. In addition to its standard warranty and/or service guaranty and other warranties or service guaranties available under law, Seller warrants that all Products and Services shall be free from any defects in design, material or workmanship (latent or otherwise) and be of good and merchantable quality; conform to Buyer’s specifications and the sample approved by Buyer, as the case may be, and be fit for the purposes known to Seller for which purchased hereunder; all Services shall be performed in a professional and workmanlike manner; and Seller, and all Products and Services, shall comply with all applicable federal, state, local, provincial, foreign or other laws, regulations and orders (including those relating to the manufacture, sale, purchase, transportation, import/export, use or possession of the Products or Services). Seller hereby extends to Buyer any and all warranties received from Seller’s suppliers that relate to the Products or Services and agrees to enforce such warranties on Buyer’s behalf. The foregoing warranties shall survive inspection, delivery, performance and payment and shall run in favor of Buyer, its successors and assigns and its customers, whether direct or indirect, and users of Buyer’s products. If Seller breaches the foregoing warranties, or fails to perform or comply with any provision of the PO, Seller shall be liable to Buyer for all losses, damages, costs and expenses arising therefrom. Buyer expressly retains all its rights and remedies provided by law in the event of such breach or failure. Without limiting the foregoing, Buyer may at its option require Seller to repair or replace any Products (even if located other than at Buyer’s facility) or re-perform any Services, in any case, at Seller’s expense, that breach any Seller warranty.
11. Intellectual Property. Seller warrants that the sale or use of Products or Services furnished hereunder will not infringe or misappropriate or contribute to infringement or misappropriation of any patent, trade secret, trademark or any other proprietary right of another or subject Buyer or its customers (direct or indirect) and users of Buyer’s products to royalties in the United States or elsewhere, except to the extent the foregoing results from Products manufactured by Seller in accordance with a design specifically provided by Buyer or Buyer’s combination of the Products with any other component not furnished by Seller, and Seller shall hold harmless, defend and indemnify Buyer, its directors, officers, employees, successors and assigns and its customers (direct or indirect) and users of Buyer’s products (Buyer and such other parties, the “Indemnified Parties”), against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of an alleged breach of this warranty.
12. Indemnity. Seller shall hold harmless, defend and indemnify the Indemnified Parties against any and all losses, damages, costs and expenses (including attorneys’ fees and other costs of defending any action), which they, or any of them, may sustain or incur as a result of any claim of breach of the PO, negligence, breach of warranty or strict liability in tort in connection with the Products or Services.
13. Compliance. Seller is solely responsible for the operation of its manufacturing and other facilities and the conduct of its business. Buyer is not responsible for the operation of Seller’s facilities and is not obligated to provide Seller with any assistance regarding the operation of its business. If recommendations are made by Buyer regarding the manufacture of Products or provision of Services or any other matter, these recommendations will not be considered binding upon Seller, and Seller will remain responsible for decisions regarding the operation of its facilities and the conduct of its business. Seller shall indemnify, defend and hold harmless the Indemnified Parties from and against any and all losses, damages, costs and expenses (including attorneys’ fees and other costs of defending any action) arising out of or in connection with Seller’s manufacture and delivery of Products, provision of the Services or conduct of its business. Additionally, notwithstanding anything to the contrary contained herein, Seller agrees to respond to Johnson’s request regarding information related to safety issues within forty-eight (48) hours of any such request and with respect to all other regulatory information requests, within fifteen (15) days of any such request.
14. Confidentiality. Seller shall keep secret and shall not use any Buyer information unless the information: (a) was known by Seller prior to Buyer’s disclosure to Seller; (b) was or becomes part of the public domain through no fault or action of Seller; or (c) is disclosed to Seller by another person not in breach of any obligation of confidentiality owed to Buyer. Seller also shall keep confidential, and not disclose to any third party, information specific to this PO or any of Buyer’s purchases or proposed purchases (including, without limitation, quantities, delivery dates and intended use). Seller shall in no event use (for sample, display or otherwise) Products manufactured specifically for Buyer, Services provided specifically to Buyer or information related to such Products or Services without Buyer’s express written consent.
15. Force Majeure. Buyer may delay delivery or acceptance occasioned by causes beyond its commercially reasonable control. Seller shall hold delayed Products or Services at Buyer’s direction and shall deliver the Products or Services when the cause for the delay ends. Buyer may terminate any order under the PO without liability to Seller (except for conforming Products and Services previously accepted by Buyer) if Seller’s delivery is delayed by the occurrence of unforeseen or unforeseeable events. If Seller’s production is only partially restricted or delayed, the Seller shall use its best efforts to accommodate Buyer’s requirements and shall give Buyer purchase orders preference and priority over those of other customers that were placed after Buyer’s purchase orders.
16. Cancellation by Buyer. Buyer shall have the right to cancel any order under the PO (in whole or in part) at any time without cause and in such event Buyer’s liability shall be limited to Seller’s actual cost for work and materials, applicable solely to the PO, which have been reasonably expended in good faith by Seller before notice of cancellation is received by Seller. At Buyer’s request, all or any part of completed work, work-in-process and/or materials will become the property of Buyer. Also, Buyer may, at its option and in addition to any other rights or remedies, cancel any order under the PO (in whole or in part) without any liability to Seller (except for conforming Products and Services previously accepted by Buyer) if Seller shall cease to exist or become insolvent or the subject of bankruptcy or insolvency proceedings or shall commit a breach of the PO.
17. Buyer's Property. Any and all designs, blueprints, Product or Service technology and know-how, tools, dies, jigs, fixtures, molds, drawings, specifications, photographs and other engineering, technical and manufacturing information supplied by Buyer or its customers shall remain the property of Buyer or its customer and shall be treated as confidential information and shall be returned to Buyer or its customers upon completion of the PO or upon demand. Seller shall insure, and bear the risk of loss of, any property of Buyer in Seller’s possession. Buyer or its customers also shall have the right to remove or repossess the above-described property at any time upon termination or cancellation, with or without cause, of any order or part thereof, free of any claims by Seller for lien or otherwise against the same. Any information which Seller may disclose to Buyer with respect to the design, manufacture or sale or use of the Products or Services shall be deemed to have been disclosed as part of the consideration for the PO and Seller shall not assert any claim (other than a claim for patent infringement) against Buyer by reason of Buyer’s use thereof.
18. Trademarks/Publicity. Seller does not acquire any right, title, or interest in any of the trademarks or trade names of Buyer by virtue of this PO, and Seller shall not use any reference to Buyer or its products or trademarks, including but not limited to its logos, in Seller’s advertising, web page, or other materials given or exposed to third parties without express prior written permission from an officer of Buyer.
19. Governing Law. This PO and the relationship of the parties hereunder is governed by and interpreted in accordance with the internal laws of the local jurisdiction where the head office of the Buyer entity that issued the PO is located, and both parties submit to the exclusive jurisdiction of the local jurisdiction’s courts unless local law prescribes otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the PO.
20. Assignment/Third Party Beneficiaries. The rights and duties under this PO are not assignable or delegable without Buyer’s prior written consent. The parent companies, subsidiaries and affiliates of Buyer are intended and express third-party beneficiaries of the PO and all terms and conditions of the PO shall inure to the benefit of, and be enforceable by, such parent companies, subsidiaries and affiliates. Without limiting the foregoing, the parent companies, subsidiaries and affiliates of Buyer shall be entitled to exercise all rights and remedies existing in their favor, whether under the PO or at law or in equity.
21. Regulatory Compliance. As and when requested by Buyer in writing, Seller shall promptly provide Buyer with all information necessary for Buyer to (a) assess the safety of the Products (or any products in which the Products are to be incorporated) or Services or (b) comply with all legal and regulatory requirements relating to the Products (or any products in which the Products are to be incorporated) or Services, including, without limitation, the registration, packaging, labeling and provision of safety information (e.g., material safety data sheet) in all countries where Products (or any products incorporating the Products) are sold from time to time. Buyer shall have the right to enter such information into a computerized file access to which shall be restricted to chemical compliance, toxicology and safety professionals. Buyer may disclose such information as required by applicable law.
22. Miscellaneous. Any amendment or modification of these Terms and Conditions of Purchase shall be null and void unless it is in writing and signed by the parties. If any provision of the PO or any portion thereof is held to be invalid, illegal or unenforceable, the offending provision or portion shall be severed from the PO and the remainder will remain in full force and effect. Buyer may notify Seller of a replacement provision which is legal, valid and enforceable and which as nearly as possible achieves the intended purpose of the removed provision and is not materially less advantageous for Seller.
23. Insurance. Seller must maintain Commercial General Liability coverage with a limit of no less than $3,000,000 per occurrence and in the aggregate and shall provide evidence of coverage upon request.
24. Trade Compliance. Seller shall comply with all applicable import and export laws, rules, and regulations. Within 5 days of Buyer’s request, Seller shall provide Buyer with a country-of-origin certificate or such information as may be requested by Buyer.
25. Equal Employment Opportunity. The parties hereby incorporate by reference the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), if applicable. This contractor and subcontractor shall abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(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, 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, national origin, protected veteran status or disability.
26. Supplier Code of Conduct. Seller shall comply with the Code of Conduct available at: https://www.scjohnson.com/en/our-purpose/commitment-to-transparency/sc-johnson-supplier-code-of-conduct-the-standards-for-how-we-work-together-to-make-life-better, as amended.