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ADI Standard PO Terms and Conditions for Goods and Services November 19, 2019
ADI Standard Purchase Order Terms and Conditions for Goods and Services
1. Acceptance - Order of Precedence - Modification
This purchase order ("Purchase Order") is for the purchase of goods services, or both as described on the face of this Purchase Order (collectively, "Goods") and is issued by Ademco Inc., doing business as ADI Global Distribution ("ADI"). This Purchase Order is deemed accepted when the supplier to which this Purchase Order is issued ("Supplier") returns the acknowledgment copy of this Purchase Order or begins performing, whichever is earlier. ADI rejects any additional or inconsistent terms and conditions offered by Supplier at any time. Any reference to Supplier’s quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document.
These terms and conditions together with any previously executed non-disclosure agreement (the obligations of which remain in effect) and with the exhibits, schedules, specifications, drawings, or other documents referred to on the face of the Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, respecting the subject matter of this Purchase Order. All contract documents related to this Purchase Order are interpreted together as one agreement; provided, however, that in the event of any conflict among the provisions of one or more of such contract documents as are validly in effect at the time of such conflict, the following order of precedence applies: (a) any consignment, stocking or other replenishment agreement; then (b) any supply agreement; then (c) any contract for labor services; then (d) the face of the Purchase Order and any supplemental terms included or incorporated by reference; then (e) these general Purchase Order provisions; and finally (f) other contract documents agreed to in writing by the parties. The exhibits, schedules and other attachments to this Purchase Order are incorporated by reference. No change to or modification of this Purchase Order will be binding upon ADI unless in writing, specifically identifying that it amends this Purchase Order, and signed by an authorized procurement representative of ADI. If Supplier becomes aware of any ambiguities, issues, or discrepancies between this Purchase Order and any specification, design, or other technical requirement applicable to this Purchase Order, Supplier will immediately submit the matter to ADI for resolution. Neither Party has relied on any promises, inducements, or representations by the other, except those expressly stated in this Purchase Order. No course of dealing, prior dealings, usage of trade or course of performance will be used to modify, supplement or explain any terms used in, or incorporated by reference into, this Purchase Order.
2. Delivery, Shipment and Packaging
2.1. TIME IS OF THE ESSENCE. Supplier will deliver Goods in the quantities and on the date(s) specified on the Purchase Order or Purchase Order schedule releases. If delivery dates are not stated, Supplier will offer its best delivery date(s), which will be subject to acceptance or rejection by ADI. Unless otherwise directed, all Goods shipped in one day from and to a single location must be consolidated on one bill of lading or air waybill, as appropriate.
2.2. If the delivery schedule is endangered for any reason other than ADI's fault, then Supplier will, at its expense, deliver Goods by the most expeditious shipping method required to fulfill the Purchase Order delivery requirements. Supplier is responsible for all costs incurred by ADI resulting from Supplier’s delayed or missed delivery. If any Products are not delivered on time, ADI may, without prejudice to its other rights, deduct 2% of the Purchase Order value per week of late delivery, up to a maximum of 8% and if delivery is delayed for more than 4 weeks. ADI will not have to prove actual damages to recover the stipulated damages in this section. The stipulated damages above and, if assessed, additional damages will be credited in any outstanding invoice or, if not sufficient, Supplier will pay ADI within 10 days of Purchaser’s assessment. ADI reserves the right to reject, at no expense to ADI, all or any part of any delivery that varies from the quantity authorized by ADI for shipment. ADI reserves the right to pursue additional remedies caused by late delivery, including but not limited to: (a) incremental freight expenses incurred by ADI for shipments of Goods to ADI and for shipments of Goods or finished product containing or incorporating the Goods from ADI to any customer of ADI, and (b) all liquidated damages payable by ADI as a result of any such late delivery. Supplier will not make any substitutions without ADI’s prior written approval. All items will be packaged according to ADI's instructions or, if none, according to good commercial practice in a manner sufficient to ensure receipt in an undamaged condition. ADI will not be liable for any discharge, spill or other environmental incident or condition (including clean-up costs) involving any Goods shipped under the Purchase Order unless caused by ADI and in no event until delivery to the destination designated by ADI. All containers will be properly marked for identification as instructed on ADI’s Purchase Order and contain a packing slip that details, at a minimum, the ADI Purchase Order number(s), product part number, detailed product description, country of origin, total number of boxes in shipment, quantity of product shipped, and final delivery address. Items shipped in advance of ADI's delivery schedule may be returned at Supplier's expense. For domestic shipments, if requested by ADI, and for all international shipments, Supplier will give notice of shipment to ADI when the Goods are delivered to a carrier for transportation. The Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading, and air waybills.
2.3. All Goods, unless specifically exempted by the destination country’s governing authorities, must be marked with the country of origin (manufacture) of the Goods in a conspicuous place as legibly, indelibly, and permanently as the nature of the article or container permits.
2.4. Supplier will provide ADI with (a) the Harmonized Tariff Schedule number, country of origin information or certificates, manufacturer's affidavits, applicable free trade agreement ("FTA") certificates, and any other documents or information ADI may require to comply with international trade regulations or to lawfully minimize duties, taxes, and fees, and (b) FTA certificates for all Goods that qualify under one or more FTAs. Supplier will provide ADI all documents, records, and other supporting information necessary to substantiate the Goods’ qualification under an FTA. Supplier will exert reasonable efforts to qualify the Goods under FTAs.
2.5. Within one business day after Supplier delivers the Goods to the carrier or at such earlier time as ADI may request, Supplier will send ADI a complete set of shipping documents including but not limited to the commercial invoice, packing list, and air waybill, or three original parts of the combined through-bill of lading, clean without notation, necessary to release the Goods to ADI’s custody.
2.6. Supplier will (a) comply with the quality system and quality assurance procedures set forth in the Quality Manual made available to Supplier, and (b) participate in and accept the terms of ADI’s Cost of Poor Performance Program, which will be provided to Supplier upon request.
3. Notice of Delay.
Supplier must immediately notify ADI in writing with all relevant information relating to any delay or threatened delay of the timely performance of this Purchase Order.
4. Excusable Delay (Force Majeure)
Neither party will be in default for any delay or failure to perform due to causes beyond its control and without its fault or negligence, and which are unforeseeable, but any delay or failure to perform caused by the default of a sub tier supplier of Supplier will be excused only if (a) it is beyond the control of both Supplier and its sub-tier supplier(s) and without the fault or negligence of any of them, and (b) the Goods to be furnished cannot be obtained from other sources in sufficient time to permit Supplier to meet the delivery schedule. Supplier's ability to sell Goods at a more advantageous price or Supplier's economic hardship in buying materials or processing necessary for manufacture of the Goods will not constitute an excusable delay event. The party affected by an excusable delay will promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the excusable delay, and will use its best efforts to mitigate the effects of the delay and to remedy the delay if it can be remedied. If Supplier's delivery is delayed, ADI may, at ADI's sole option cancel deliveries scheduled during the excusable delay period or elect to extend the period of performance to cover the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Goods to ADI, Supplier will allocate its available supply of Goods in a manner that assures ADI of at least the same proportion of Supplier's total output of Goods as was allocated to ADI before the excusable delay event. If delivery of any Goods is delayed for more than 30 days, ADI may, without liability, cancel all or any part of this Purchase Order.
5. Performance Assurance Plan
If ADI, in its sole discretion, determines there is a significant risk that Supplier will fail to meet its performance or delivery requirements under this Purchase Order, ADI may require Supplier to perform under a ADI or ADI-approved Performance Assurance Plan. The Performance Assurance Plan may include specific reporting and performance requirements reasonably tailored to ensure Supplier’s adequate performance under identified provisions of this Purchase Order. Any failure by Supplier to satisfy the terms of the Performance Assurance Plan is a material breach of this Purchase Order.
6. Shipping Terms, Title and Risk of Loss
6.1. If the Goods will be transported from Supplier's location in the U.S. to ADI's designated delivery location in the U.S., unless otherwise specified on the face of the Purchase Order or in a separate signed agreement, the F.O.B. (UCC terms) point is ADI's designated delivery location. When the F.O.B. point is Supplier's U.S. location, Supplier bears all risk of loss or damage to the Goods and title passes to ADI upon delivery of the Goods by Supplier to the carrier designated or approved by ADI. When the F.O.B. point is ADI's U.S. location, Supplier bears all risk of loss or damage to the Goods and title passes to ADI upon delivery of the Goods by Supplier at ADI's designated delivery location.
6.2. In all other cases, unless otherwise specified on the face of the Purchase Order or in a separate signed agreement, (a) Supplier will deliver the Goods DAP (INCOTERMS 2010) at ADI's designated delivery location, and (b) title to Goods passes to ADI upon receipt at ADI's designated delivery location.
6.3. The foregoing does not relieve Supplier of any responsibility for hidden damages discovered after acceptance of the Goods. Notwithstanding the foregoing, title and risk of loss to Goods subject to a consignment, stocking or other replenishment agreement pass upon release of the Goods from consigned inventory or at such other time set forth in such consignment, stocking or other replenishment agreement. ADI may direct Supplier to ship the Goods to ADI or to any third party designated by ADI.
7. Import/Customs Compliance
Supplier assumes all responsibility and liability for any shipments covered by this Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under this Purchase Order, ADI reserves the right to terminate this Purchase Order under the Termination provisions of this Purchase Order. Supplier will be debited for any duties, fees, or freight incurred by ADI due to Supplier's failure to comply with the terms and conditions of this Purchase Order.
To the extent applicable to any shipment of Goods to ADI or ADI’s designee, all drawback of duties, and rights thereto, related to duties paid by Supplier or ADI when the Goods are imported or any materials or components used in manufacturing of the Goods will accrue to the exclusive benefit of ADI. Duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub- tier suppliers related to the Goods. Supplier will provide ADI with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with ADI to obtain payment.
Supplier will assist ADI in obtaining credit from Supplier’s government for the value of relevant Goods purchased to meet any present or future contractual offer or industrial benefit requirements imposed upon ADI or its subsidiaries or affiliates, if any. Assistance includes, but is not limited to, providing upon ADI’s request evidence of the existence, value, content, and other pertinent information relating to the purchases. ADI reserves the right to claim these credits for itself or third parties. If Supplier awards any portion of the work under this Purchase Order to any lower tier supplier, Supplier will assign to ADI any credits obtained from the lower tier supplier’s government relating to this transaction, if any, and assist ADI in obtaining those credits.
10. ADI-Supplied Materials, Tooling, Equipment and Technical Data
10.1. Title to any material, components, tooling, equipment, or technical data that ADI pays for or provides to Supplier or is responsible for providing to Supplier, including replacements ("ADI Property"), will remain or vest with ADI. Supplier will conspicuously label ADI Property as such, maintain it in good working condition, keep written records of the ADI Property in its possession and the location of the property, not allow any liens to be placed upon it, not abandon ADI Property, prohibit any third party from using or taking possession of ADI Property and not change its location without prior written approval from ADI. Supplier is responsible for inspecting and determining that the ADI Property is in useable and acceptable condition.
10.2. Supplier shall obtain all permits and licenses necessary for the installation, operation, possession, and use of ADI Property. Supplier shall comply with all laws, rules, regulations, and ordinances applicable to the installation, use, operation of ADI Property.
10.3. Supplier will use ADI Property exclusively to fulfill ADI Purchase Orders unless otherwise authorized in writing by ADI’s procurement representative. ADI Property is intended for use at the Supplier’s site only or as otherwise authorized in writing by ADI’s procurement representative and, to the extent applicable, is subject to U.S. and other government export or re-export requirements. Supplier is responsible for any loss, damage, or destruction of ADI Property and any loss, bodily injury, damage or destruction resulting from Supplier’s use of ADI Property. Supplier shall provide for the service, repair, and maintenance of ADI Property, at its own expense, so as to keep ADI Property in as good condition, repair, appearance, and working order as when delivered to ADI hereunder, ordinary wear and tear excepted. Supplier shall, at its own expense, replace any and all parts and devices which may from time to time become worn out, lost, stolen, destroyed, damaged beyond repair, or rendered unfit for use for any reason whatsoever. All such replacement parts, mechanisms, and devices shall be free and clear of liens, encumbrances, and rights of others and shall become ADI Property. Supplier will not include the cost of any insurance for ADI Property in the prices charged under this Purchase Order and, to the extent that any Goods contain any ADI Property, will not include in the price of any such Good any mark-up or fee with respect to such ADI Property. Supplier will return ADI Property or dispose of it as ADI directs in writing. ADI makes no representations and disclaims all warranties (express or implied) with respect to ADI Property.
Supplier will furnish the Goods at the prices stated on the face of the Purchase Order. If prices are not stated on the face of the Purchase Order, Supplier will offer its lowest prices subject to written acceptance by ADI. Unless otherwise provided on the face of the Purchase Order, the prices include all packaging and freight to the specified delivery point; applicable taxes and other government charges including, but not limited to, all sales, use, or excise taxes; and all customs duties, fees, or charges that must be separately itemized on all invoices issued by the Supplier in terms of this Purchase Order. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to ADI of any Goods, ADI will pay the tax as /an addition to payments otherwise due Supplier under this Purchase Order, if Supplier provides to ADI a value-added tax (or equivalent tax) invoice. To the extent ADI has not received from Supplier all applicable forms regarding compliance with applicable tax law, ADI reserves the right to deduct from any payment to Supplier pursuant to this Purchase Order those amounts that ADI, in its sole discretion, deems to be required to be withheld in order to comply with the tax laws of any applicable jurisdiction. Upon the agreement of the parties to reduced pricing for the Goods, such pricing shall immediately apply to all Goods in consignment, stocking or replenishment arrangement with Supplier, all undelivered Goods, all open and unfilled Purchase Orders, all future Purchase Orders and all unconsumed inventory owned by ADI.
12. Price: Most Favored Customer and Meet or Release
Supplier warrants that the prices charged for the Goods delivered under this Purchase Order are the lowest prices charged by Supplier for similar goods. If Supplier charges a lower price for similar goods, Supplier must notify ADI and apply that price to all Goods ordered under this Purchase Order by immediately paying ADI the price difference and applying the lower price to all Purchase Orders. If at any time before full performance of this Purchase Order ADI notifies Supplier in writing that ADI has received a written offer from another supplier for similar goods at a price lower than the price set forth in this Purchase Order, Supplier must immediately meet the lower price for any undelivered Goods. If Supplier fails to meet the lower price, in addition to other rights or remedies, ADI, at its option, may immediately terminate the balance of the Purchase Order without liability. As directed by ADI, Supplier will provide the Goods at the prices listed on the face of this Purchase Order, subject to these terms and conditions, to other ADI divisions and affiliates and any third-party ADI sub-supplier or designee.
13. Invoicing and Payment
After each shipment made or service provided, Supplier will submit to the address indicated on the Purchase Order an invoice listing a description of the Goods provided and, as applicable, part numbers, quantity, unit of measure, hours, and the unit and total prices. Supplier must provide invoices in no event more than 90 days after delivery of Goods to ADI otherwise Supplier waives its right to payment. This invoice must match the corresponding Purchase Order pricing, quantities, and terms, and must be sent to the invoice address listed on the Purchase Order. All applicable taxes and other Government charges including, but not limited to, sales, use, or excise taxes, value added tax, customs duties, fees and all incidental charges including but not limited to royalties, selling commissions, nonrecurring engineering, or other incidental charges must be separately itemized and identified on the invoice. The invoice must also include the following information in English, or in the destination country’s official language if required: (a) name and address of Supplier and the ADI entity purchasing the Goods; (b) name of shipper (if different from Supplier); (c) ADI’s Purchase Order number(s); (d) country of export; (e) detailed description of the Goods; (f) Harmonized Tariff Schedule number; (g) country of origin (manufacture) of the Goods, or if multiple countries of origin, the country of origin of each part shipped; (h) weights of the Goods shipped; (i) currency in which the sale was made; (j) payment terms; (k) shipment terms used; and (l) all rebates or discounts. If an invoice does not comply with the above requirements or is exhausted (out of funds or paid in full), or the invoice contains quantities or prices greater than the ones reflected on the Purchase Order the invoice will be rejected by ADI. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the Goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Purchase Order. Payment terms are net 120 days from receipt of correct invoice and conforming Goods unless otherwise stated on the face of the Purchase Order or other written agreement executed by both parties; provided, however, that in the event that applicable law requires a payment terms period of shorter duration, payment terms shall be the maximum period allowed by applicable law. Invoices will not be approved unless they accurately reference conforming Goods received by ADI or services satisfactorily performed for ADI, as well as a valid Purchase Order number, supplier name and address, line description, quantity at line level, price at line level, withholding rates and/or amounts for applicable taxes. Payment will be scheduled for the next payment cycle following the net terms for the Purchase Order.
14. Set Off.
ADI may deduct any amount owing from Supplier to ADI as a set off against any amount owing to Supplier under this Purchase Order.
15.1. All Goods may be inspected and tested by ADI, its customers, higher-tier contractors, and end users at all reasonable times and places. If inspection or testing is made at Supplier's premises, Supplier will provide, without charge, all reasonable facilities and assistance required for the inspection and tests. Supplier's standard inspection and testing system must be approved by ADI in writing. All inspection and testing records, including sub-tier supplier records relating to the Goods, will be maintained by Supplier and made available to ADI during the performance of this Purchase Order, and for such longer periods if specified by ADI.
15.2. Final inspection and acceptance by ADI will be at destination unless otherwise specified in this Purchase Order. ADI may inspect all or a sample of Goods, and may reject all or any portion of the Goods within 90 days of delivery if ADI determines the Goods are defective or nonconforming. If ADI performs any inspection (other than the standard inspection) after discovering defective or nonconforming Goods, any additional inspection costs will be paid by Supplier. No inspection, tests, approval, design approval, or acceptance of the Goods relieves Supplier from responsibility for warranty or any defects (latent or otherwise), fraud, or negligence. ADI reserves the absolute right to refuse acceptance of, or reject and return to Supplier at Supplier's sole cost and expense any material, Goods that fail to conform to any applicable laws or regulations, or for which Supplier fails to package, ship, label or provide proper notice to ADI as required by any applicable law or regulation. If Goods are defective or nonconforming, ADI may, by written notice to Supplier: (a) rescind this Purchase Order as to the Goods; (b) accept the Goods at an equitable reduction in price; or (c) reject the Goods and require the delivery of replacements. Delivery of replacements will be accompanied by a written notice specifying that the Goods are replacements. If Supplier fails to deliver required replacements promptly, ADI may: (1) correct any retained defective or nonconforming Goods at Supplier’s expense; (2) replace them with Goods from another supplier and charge the Supplier the cost thereof, including cover, and any incidental costs; or (3) terminate this Purchase Order for cause.
16.1. Supplier warrants to ADI, its successors, assigns, customers, and end users that during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components and regardless of whether all or any part of such furnished Goods or any replacement or corrected Goods was manufactured, distributed or otherwise commercialized by a third party prior to delivery by or on behalf of Supplier to ADI) will (a) be new, (b) be free from defects in material, workmanship, and design, even if the design has been approved by ADI, (c) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by ADI, (d) not be or contain Counterfeit Items (as defined below), (e) be and only contain materials directly obtained from the original equipment manufacturer ("OEM") or a reseller authorized by the OEM, (f) be merchantable, (g) be fit for the intended purposes and operate as intended, (h) comply with all laws and regulations, (i) be free and clear of any and all liens or other encumbrances, (j) contain only authentic, unaltered OEM labels and markings, and (k) not infringe any patent, published patent application, or other intellectual property rights of any third party and not utilize misappropriated third party trade secret information. Goods that fail to meet the preceding standards are collectively called "non-conforming Goods." "Counterfeit Items" mean Components (as defined below), Goods and software incorporated in a Good or Component that (i) are unauthorized copies or substitutes of an OEM item; (ii) are not produced in accordance with, or do not contain the proper materials or components as specified on, the OEM’s specifications or design; (iii) are used, refurbished, or reclaimed, but which are represented as being new; or (iv) are labeled, logoed or marked to mislead or deceive a reasonable person into believing a non-OEM item is genuine. Supplier must obtain third party warranties consistent with Section 16 for all raw materials, components, and services required by Supplier to perform under this Agreement ("Components") and Supplier is solely responsible for ensuring that all Components meet these requirements.
Any Component that fails to meet these requirements will be deemed to be a non-conforming Good. Supplier will promptly notify ADI in writing upon Supplier discovering that it has, or suspects that it may have, delivered a non-conforming Good or Counterfeit Item.
16.2. As to services, in addition to any express or implied warranties, Supplier warrants that (a) it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the services, (b) the services will be performed in a safe and workmanlike manner, and (c) the services will be performed in accordance with the highest standards in the industry.
16.3. The Warranty Period is 36 months from the date of delivery to the end user or such longer period of time mandated by any longer government requirement covering the Goods. In addition to the warranties described above, Supplier also warrants all Goods to the same extent and for the same time period (if extending beyond 36 months) as the warranties provided by ADI to ADI’s customers relating to such Goods. These warranties are for the benefit of ADI, ADI’s customers, and any other person claiming by or through ADI. These warranties will survive any delivery, inspection, acceptance, or payment by ADI. Claims for breach of warranty do not accrue until discovery of nonconformance, even if the Goods were previously inspected. Any applicable statute of limitations runs from the date of discovery. If conforming Goods are not furnished within the time specified by ADI then ADI may, at its election, have the nonconforming Goods repaired, replaced, or corrected at Supplier’s expense or credited to ADI. Supplier is responsible for the costs of repairing, replacing or correcting nonconforming Goods or crediting them to ADI, and for all related costs, expenses and damages including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection, and retrofit of the nonconforming Goods or of ADI’s affected end-product; all freight charges, including but not limited to incremental freight expenses incurred by ADI for shipments of repaired, replaced, or corrected Goods to ADI and for shipments of repaired, replaced, or corrected Goods or finished product containing or incorporating repaired, replaced, or corrected Goods from ADI to any customer of ADI; all customer charges; and all corrective action costs. Unless set off by ADI, Supplier will reimburse ADI for all such costs upon receipt of ADI’s invoice. Any replacement Goods are warranted for the same period as the original Goods. Additionally, if any services are found not to be performed as warranted within a period of 36 months after the conclusion of the performance of the services by Supplier, ADI may direct Supplier to either refund to ADI the amount paid for the services, or perform the services again in a proper manner to the extent necessary to provide ADI with the result originally contemplated by ADI. The warranties and rights provided are cumulative and in addition to any warranty provided by law or equity.
16.4. If, following delivery, Goods exhibit a substantially similar repetitive root cause, failure mode or defect indicating a common or systemic failure ("Epidemic Failure"), then, without prejudice to ADI’s rights under Section 22: (a) the party discovering the failure will promptly notify the other and Supplier will provide to ADI a preliminary plan for problem diagnosis within one business day of such notification, which plan Supplier will revise at ADI’s request; (b) Supplier and ADI will diagnose the problem, plan an initial work-around and effect a permanent solution; (c) Supplier and ADI will agree on a plan for customer notification, replacement scheduling and remediation, including identification of suspect population, field removal, return and reinstallation, work in process ("WIP"), inventory replacement, and repair, or retrofitting, regardless of location or status of WIP completion; and (d) Supplier is responsible for all costs and damages associated with any Epidemic Failure. ADI and Supplier will work together in good faith to establish and expeditiously implement an Epidemic Failure action plan. If Supplier or any of its Component suppliers initiate any Product or Component recalls, retrofits, or service bulletins that affect Product quality, Supplier will immediately communicate this information to ADI.
16.5. No part of any software or other deliverables delivered by Supplier under this Purchase Order shall contain any software or component licensed or obtained under any Open Source licensing program. "Open Source" shall mean any software or other material that is distributed as "free software", "open source software" or under a similar licensing or distribution model (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), and the Apache License) If Supplier uses Open Source in any software or deliverable, Supplier must first seek written approval from ADI and if approved, Supplier must identify each Open Source item along with the applicable license terms. For any such approved Open Source, Supplier represents that (a) Supplier is in compliance with the terms and conditions of all applicable licenses for Open Source and (b) ADI's use of such Open Source (i) will not adversely impact ADI's proprietary software (ii) will not require ADI to make available the source code for any ADI propriety software (iii) will not prohibit or limit ADI from charging a fee in connection with sublicensing or distributing the software.
16.6. Goods covered by this Purchase Order will comply with all applicable treaties, laws, regulations of the place of manufacture and Canadian, European Union and U.S. state and federal laws, regulations and standards (a) concerning the importation, sale, design, manufacture, packaging and labeling of its Goods, (b) regulating the sale of Goods, and (c) relating to the environment and/or the toxic or hazardous nature of Goods or their constituents, including (without limitation) the U.S. Toxic Substances Act, the U.S. Occupational Safety and Health Act, the U.S. Hazardous Communication Standard, the Federal Hazardous Substances Act, the California Proposition 65, European ROHS standards, and other current and subsequently applicable requirements; and Supplier agrees that it shall furnish promptly on request and provide all information and certifications evidencing compliance with such laws, regulations, standards and requirements.
16.7. Supplier represents and warrants that there is nothing that will directly, indirectly, actually or potentially restrict or prevent Supplier in any way from fulfilling all its obligations, duties and services under this Purchase Order, including without limitation any exclusivity or non-compete arrangement.
ADI may, by written or electronic notification, direct changes in the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods; reschedule the services; or require additional or diminished services. Only authorized ADI procurement representatives may issue changes to the Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment will be made in the Purchase Order price, delivery dates or both, and this Purchase Order will be modified in writing or electronically accordingly. Any claim by Supplier for adjustment under this provision may be deemed to be waived unless asserted in writing (including the amount of the claim and adequate supporting documentation) and delivered to ADI within 30 days from the date of the receipt by Supplier of the ADI-directed change to the Purchase Order. If ADI compensates Supplier for property made obsolete or excess by a change, ADI may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement.
18. Design and Process Changes
18.1 Supplier will make no changes in the design, materials, manufacturing location, manufacturing equipment, production process, changes between a manual and automated process, or any other processes related to the Goods specified in the Purchase Order or documents referenced in it, or if none, those in place when the Purchase Order is issued, without the advance written approval of ADI’s procurement representative. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
18.2 To request approval to change a manufacturing location or subcontracting of process required to manufacture Goods, Supplier must provide ADI with a plan at least 180 days prior to the proposed start date of implementing such change in the manufacturing location or subcontracting of process required for the Goods. Any such plan is subject to ADI's written approval, and must result in a reduction in price charged by Supplier to ADI for Goods, and must demonstrate that supplier has taken all necessary actions to avoid negative impacts to ADI, including but not limited to maintaining additional inventory, overlapping production schedules, etc. Such price reductions will be agreed to by Supplier and ADI prior to implementation.
18.3 Supplier will be responsible for any and all of ADI’s costs incurred as a result of changes implemented by Supplier including but not limited to all customer charges; all labour costs, including engineering costs, travel and lodging; all costs to transition to an alternative source of supply; redesign and/or recertification; and all corrective action.
18.4 Supplier will flow down this requirement in all its subcontracts and purchase orders for purchased goods or process-related services required for the Goods. Whether such Goods are supplied to Supplier as an end item, a component part of an end item or an individual piece part.
19. Stop Work
At any time by written notice and at no cost, ADI may require Supplier to stop all or any part of the work under this Purchase Order for up to 120 days ("Stop Work Order"), and for any further period as mutually agreed. Immediately upon receipt of a Stop Work Order, Supplier will comply with its terms. At any time ADI may, in whole or in part, either cancel the Stop Work Order or terminate the work under the Termination section of this Purchase Order. To the extent the Stop Work Order is canceled or expires, Supplier must immediately resume work.
20.1. The non-breaching party may terminate this Purchase Order if the other party commits a material breach and fails to remedy the breach within 30 days following receipt of written notice specifying the grounds for the breach, except in the case of breach related to safety, health, or security or any misuse or disclosure of ADI’s intellectual property rights or Confidential Information, ADI will have the right to immediately terminate the Purchase Order. A material breach includes, but is not limited to, late delivery or delivery of nonconforming Goods. If Supplier breaches its obligations to ADI and ADI terminates this Purchase Order in whole or in part, ADI may charge Supplier for any additional cost it incurs in performing Supplier’s obligations or in having such obligations performed by a third party. The solvent party may terminate this Purchase Order upon written notice if the other party becomes insolvent or if any petition is filed or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If a termination by ADI for breach by Supplier is determined to have lacked cause, such termination will be treated as a termination without cause under Section 20.2.
20.2. Notwithstanding any firm time period or quantity on the face of the Purchase Order, ADI may terminate this Purchase Order in whole or in part at any time with or without cause for undelivered Goods or unperformed services upon 10 days’ prior written notice.
20.3. If ADI terminates this Purchase Order under either 20.1 or 20.2, ADI’s sole liability to Supplier, and Supplier’s sole and exclusive remedy, is payment for Goods received and accepted by ADI before the date of termination. If ADI terminates this Purchase Order under Section 20.2 above, ADI’s sole liability to Supplier, and Supplier’s sole and exclusive remedy, is payment for (A) Goods received and accepted by ADI before the date of termination, and (B) with respect to custom Goods that are within lead time under the terminated Purchase Order, unique raw materials, work in progress and finished Goods, which shall be delivered to ADI. The payment can be set off against any damages to ADI. Upon termination, ADI may require Supplier to transfer title and deliver to ADI any completed Goods and ADI will pay the Purchase Order price for those Goods subject to set off against any damages to ADI. ADI may also require Supplier to transfer title and deliver to ADI any or all property produced or procured by Supplier to perform this Purchase Order. ADI will credit Supplier with the reasonable value of the property, but not more than Supplier’s actual cost or the Purchase Order value, whichever is less.
20.4. To the extent that any portion of this Purchase Order is not terminated under 20.1 or 20.2 above, Supplier will continue performing that portion.
21. Cessation of Production
If production of any Good is to be discontinued or suspended within 1 year after final delivery under this Purchase Order, Supplier must give ADI as much prior written notice as commercially reasonable of the discontinuance or suspension. For at least 180 days from the notice of discontinuance or suspension, Supplier must accept orders from ADI for the Good at the price and on the terms of this Purchase Order.
22. Buy ADI
Supplier will use commercially reasonable efforts to utilize ADI products and services in the fulfillment of this Purchase Order. Upon ADI’s request, the Parties will mutually agree in the establishment of reasonable metrics for the utilization of ADI products and services.
23. General Indemnification
Supplier will, at its expense, defend, hold harmless and indemnify ADI and its customers, subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, employees and customers, (collectively "Indemnitees") from and against any and all loss, cost, damage, claim, demand, penalty or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from the Indemnitee ("Loss") arising out of, resulting from or occurring in connection with Supplier’s Goods by Supplier or its personnel (including any employment-related Loss arising out of, resulting from or occurring in connection with the performance), the acts, omissions, negligence or willful misconduct of Supplier or its personnel, Supplier’s breach of the terms of this Agreement, or any theft or other misappropriation of ADI’s or its personnel's information, property or funds by Supplier or its personnel. Indemnitees may participate in the defense and negotiations to protect their interests. Supplier will not enter into any settlement or compromise without ADI's prior written consent, which will not be unreasonably withheld. If ADI is obligated to pay any Loss or any damages pursuant to its contract with a customer, then Supplier will be liable for such Loss any damages to the extent Supplier causes or contributes to such Loss or any damages. Furthermore, in the event a recall or other corrective action relating to Supplier's Goods is necessitated by a defect or a failure to conform to any laws, regulations or specifications, Supplier shall bear all costs and expenses of such recall or other corrective action, including without limitation, costs of notifying customers, customer refunds, cost of returning goods, and other expenses incurred to meet obligations to third parties. Nothing in this Section limits ADI's right to claim all actual damages sustained by ADI as a result of Supplier-caused delays. Supplier's indemnification includes claims between parties, including legal fees.
24. Intellectual Property Indemnification
For Goods provided under this Purchase Order, Supplier will, at its expense, defend and indemnify the Indemnitiees from and against any and all loss, cost, damage, claim, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from Indemnitee arising out of, or relating to any alleged or actual: (a) patent, copyright, or trademark infringement; (b) unlawful disclosure, use, or misappropriation of a trade secret; or (c) violation of any other third-party intellectual property right, and from expenses incurred by Indemnitee in defense of such suit, claim, or proceeding if Supplier does not undertake the defense thereof. Supplier will not enter into any settlement without ADI’s prior written consent, which will not be unreasonably withheld. Indemnitee may participate in the defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at ADI’s option and Supplier’s expense, obtain for Indemnitee either the right to continue using and selling the Goods or replace or modify the Goods to make them non-infringing; without any loss of functionality. Supplier’s indemnification includes claims between parties, including legal fees.
Supplier will maintain and carry liability insurance in an amount no less than the greater of (a) the minimum amount required by applicable law, or (b) the following coverages: commercial general liability (including product liability and, for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, worker’s compensation in an amount no less than the applicable statutory minimum requirement, and employer’s liability in an amount of no less than $5 million, all with insurance carriers with an AM Bests rating of no less than A- or equivalent. In addition, Supplier is responsible for maintaining an adequate level of insurance to cover any potential losses due to damage to ADI Property, as defined in Section 10. All insurance required by this Section must cover Ademco Inc. its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents as additional insureds. Before delivery of any Goods or commencement of any services under the Purchase Order, Supplier will provide to ADI evidence that Seller maintains the described insurance, and that the coverage will not be changed without 30 days advance written notification to ADI from the carrier(s). Except where prohibited by law, Supplier will require its insurers to waive all rights of recovery or subrogation against Ademco Inc. its subsidiaries and affiliated companies, and its and their respective officers, directors, shareholders, employees, and agents. The amount of insurance carried in compliance with the above requirements is not to be construed as either a limitation on or satisfaction of the indemnification obligation in this Purchase Order.
26. Lien Waivers
Supplier will furnish, upon ADI’s request, waivers by Supplier and all other persons entitled to assert any lien rights in connection with the performance of this Purchase Order and will indemnify ADI against all costs, loss or liability incurred by ADI as a result of any failure by Supplier or any other person to comply with this provision.
27. Confidentiality; Intellectual Property; Data Protection
27.1 All information, including without limitation specifications, samples, drawings, materials, know-how, designs, processes, and other technical, business, or financial information, that: (a) has been or will be supplied to Supplier by or on behalf of ADI; or (b) Supplier will design, develop, or create in connection with this Purchase Order; as to individual items or a combination of components or both, and whether or not completed, and all derivatives of (a) and (b) that Supplier has or will design, develop or create are deemed to be "Confidential Information" of ADI. All Confidential Information is work made for hire and made in the course of services rendered. All rights to it belong exclusively to ADI, with ADI having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. To the extent that exclusive title or ownership rights in Confidential Information may not originally vest in ADI, Supplier irrevocably assigns transfers and conveys to ADI all right, title, and interest therein.
27.2 ADI’s Confidential Information will remain the property of ADI. It may not be used by Supplier for any purpose other than for performing this Purchase Order, may not be disclosed to any third party, and will be returned to ADI upon the earlier of ADI’s written request or completion of the Purchase Order. If, with ADI’s prior written approval, Supplier furnishes Confidential Information to a sub- tier supplier, Supplier will bind the sub-tier supplier to confidentiality requirements substantially identical to this provision and Supplier will remain responsible to ADI for any breach of this provision by its sub-tier suppliers. No disclosure, description or other communication of any sort will be made by Supplier to any third person of the fact of ADI’s purchase of Goods hereunder, the terms of this Purchase Order, the substance of any discussions or negotiations concerning this Purchase Order, or either party's performance under this Purchase Order.
27.4 Data Rights. Without limiting any other rights ADI might have under this Purchase Order, Supplier grants ADI and its subsidiaries and affiliates access to and a perpetual, irrevocable, non-exclusive, worldwide, fully paid up right to retain, transfer, duplicate, analyze, modify, prepare derivative works and otherwise use for any purpose all data inputted, uploaded or transferred in relation to, or which is collected by, the Goods and any related products or services ("Goods Data"). Goods Data is ADI confidential information. All information, analysis, inventions and algorithms derived from Goods Data by ADI and/or its subsidiaries and affiliates and any intellectual property rights obtained thereon, are owned exclusively and solely by ADI and are ADI’s confidential information. This Section survives termination of this Purchase Order.
27.5 With the exception of personal data, this Agreement imposes no obligation upon Supplier if Supplier can demonstrate that the Confidential Information: (a) was rightfully in Supplier’s possession before receipt from ADI and was not accompanied by a duty of confidentiality; (b) is or becomes a matter of public knowledge through no fault of Supplier; (c) is rightfully received by Supplier from a third party and is not accompanied by a duty of confidentiality; (d) is disclosed by ADI to a third party without a duty of confidentiality on the third party; (e) is independently developed by Supplier without use of ADI’s Confidential Information; or (f) is disclosed under operation of law, provided Supplier notifies ADI and upon ADI’s request and at ADI’s cost cooperates in all reasonable respects to contest the disclosure or obtain a protective order or other remedy.
28.1 Supplier will maintain detailed records reflecting Supplier’s compliance with this Purchase Order for at least 10 years from the date of last delivery. Supplier will provide, and will cause each of its sub-tier suppliers to provide, access for ADI’s personnel, auditors, all regulatory authorities and ADI’s customers to have access at all reasonable times to facilities, books and other pertinent records and any other information as requested by ADI or ADI’s auditors. Supplier will require each of its sub-tier suppliers to do likewise with respect to their records and materials. Supplier will maintain, and will provide ADI upon request with, documentation that authenticates traceability of the manufacturers utilized by Supplier to obtain all Goods and Components under this Purchase Order.
28.2 If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following the discovery of the error and the resulting payment/credit will be issued promptly. Supplier will, and will cause its sub-tier suppliers to, promptly correct any other Supplier deficiencies discovered as a result of the audit.
29. Limitation of Liability
ADI IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR LOSS OF USE OF ANY PROPERTY OR CAPITAL) EVEN IF ADVISED, OR OTHERWISE AWARE, OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE EXCLUSION OF SUCH DAMAGES IS INDEPENDENT OF, AND WILL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS AND CONDITIONS.
30. Assignment and Subcontracting
This Purchase Order will be binding on the parties and their respective permitted successors and assigns. Supplier will not assign this Purchase Order or any rights or obligations under this Purchase Order or subcontract the manufacture of the Goods or performance of any related services without the prior written approval of ADI. Any transfer of this Purchase Order by Supplier by merger, consolidation, or dissolution, or any change in ownership or power to vote a controlling share of the voting stock in Supplier, will constitute an assignment for the purpose of this Agreement. Any assignment or subcontract without ADI's written approval will be voidable at the option of ADI. ADI may assign this Purchase Order or any rights or obligations under this Purchase Order to any of its subsidiaries or affiliates or to any purchaser or successor to all or substantially all of the assets of ADI without Supplier's consent and upon written notice to Supplier. To the extent Supplier assigns or subcontracts all or part of the manufacture of the Goods or performance of any related services as permitted under this Purchase Order, Supplier will be responsible for its assignees and subcontractors (including but not limited to its affiliates) and their personnel to the same extent as if the acts or omissions were performed by Supplier and its employees, agents and personnel.
31. Relationship of Parties/Independent Contractor
Nothing in this Purchase Order will be construed to place Supplier and ADI in an agency, employment, franchise, joint venture, or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Purchase Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Supplier will perform its obligations under this Purchase Order as an independent contractor. Supplier will be solely responsible for all Employer Obligations with respect to Supplier personnel, even if a court or other body deems the personnel to be ADI employees. "Employer Obligations" means all obligations of any kind imposed customarily or by law or agreement on persons acting in the capacity of an employer, including, without limitation, responsibility for (a) hiring, assigning, compensating, and terminating personnel; (b) withholding and paying taxes; (c) verification of employment eligibility, including compliance with work authorization and immigration laws and export licensing and control requirements; (d) compliance with all federal, state, and local laws (both common and statutory) and regulations related to employment and the rights of personnel. Supplier represents and warrants that it and all its subcontractors, if any, comply and will continue to comply with all applicable employment laws and regulations related to personnel working on ADI matters, that all personnel working on ADI matters are authorized to work in the relevant jurisdiction, and that it does not employ child or forced labor.
32. Compliance with Laws and Integrity
32.1 Supplier will comply with all laws, regulations and ordinances and ADI’s Code of Business Conduct ("Code") in performing this Purchase Order. A copy of the Code may be obtained at https://www.Resideo.com/suppliers. Supplier agrees to abide by and maintain an integrity and compliance program that encompasses at a minimum the standards of business conduct set forth in the Code and that effectively prevents and corrects ethical violations and maintains compliance with laws. To the extent deemed applicable by ADI, Supplier will also comply with ADI’s (a) Information and System Security Supplier Terms and Conditions, and (b) Product Security Term and Conditions.
32.2 Supplier agrees to abide by the Code and maintain an integrity and compliance program that encompasses at a minimum the standards of business conduct set forth in the Code and that effectively prevents and corrects ethical violations and maintains compliance with laws. Supplier and its employees, agents, representatives and subcontractors have not made or received, and will not make or receive, directly or indirectly, any payments, loans, gifts, favors or other special consideration or form of compensation (a) to or from ADI, to its employees, agents or representatives, other than payments set forth in this Agreement or other written contractual agreement between Supplier and ADI; or (b) to or from any third party for the purpose of influencing the performance by Supplier or ADI of its respective duties hereunder. Supplier warrants it has and will comply with the U.S. Foreign Corrupt Practices Act, UK Bribery Act, EU and similar anti-bribery legislation or requirements. A breach of this provision will be deemed a material breach of this Purchase Order and grounds for termination of this Purchase Order. Supplier will indemnify and hold harmless ADI from and against any and all loss, cost, expense (including reasonable attorney and professional fees), claims, damage, or liability arising out of or resulting from or occurring in connection with Supplier’s breach of this Section. Supplier must have a management system dedicated to compliance with applicable environmental, health and safety laws and regulations to ensure a safe working environment for its employees and responsible care of materials to prevent a negative impact on the environment (for example: ISO14001:2004/OHAS 18001:2007).
32.3 Upon request, in form and substance satisfactory to enable ADI to meet its compliance obligations with regard to Regulation (EC) No 1907/2006 ("REACH"), Supplier will provide ADI with complete information regarding the chemical composition of any Goods supplied under this Purchase Order, including all safety information required under REACH and information regarding the registration or pre-registration status of any Deliverables pursuant to REACH promptly but no later than 30 days of receiving such request. Supplier agrees that it will include any ADI "Identified Use" in its REACH registrations or applications for Authorization, unless Supplier notifies ADI that it rejects the Identified Use in order to protect human health or the environment and specifies the reason for the rejection. In this case, ADI will have the right to terminate this Purchase Order without incurring any damages.
32.4 Absent ADI’s prior written consent, no Goods will contain any of the substances identified in (a) Article 4(1) of the European Parliament Directive 2011/65/EU (the "RoHS Directive") as the RoHS Directive may be updated from time to time and as such Directive is implemented in any country, but only to the extent that the Directive applies to the commercialization, sale or use of such Goods, or (b) similar applicable laws or regulations (including, without limitation, the United States Department of Transportation and California Proposition 65), restricting the use of hazardous materials in such other jurisdictions to the extent that any such law or regulation applies to the commercialization, sale or use of such Goods. If such prior written consent is given, then Supplier shall inform ADI in writing of same, and properly warn, label, package and ship such hazardous materials in accordance with all applicable laws and regulations. Further, prior to shipment and upon request, Supplier shall identify and provide to ADI compliant material safety data sheet information and RoHS Directive information for covered Goods.
32.5 Goods will comply with the restrictions set forth in the Montreal Protocol on ozone-depleting substances. Supplier will avoid use of materials of concern in the Goods provided to ADI, including but not limited to Persistent, Bioaccumulative Toxic (PBT) substances, Persistent Organic Pollutants (POPs) (e.g. PCBs, mercury, certain insecticides-DDT, chlordane etc.), carcinogens (known or suspected), mutagens, radioactive materials, reproductive toxins (known or suspected), beryllium, hexavalent, chromium, asbestos or other respirable fibers, ozone depleting substances, brominated flame retardants or nanoparticles. Supplier will proactively inform ADI of any above listed substances content in any Goods supplied under a Purchase Order.
32.6 Supplier will be responsible for all costs and liabilities for or relating to the recycling of Goods pursuant to the most current version of European Parliament Directive 2012/19/EU (the "WEEE Directive") as the WEEE Directive may be updated from time to time and as such Directive is implemented in any country.
32.7 All Goods conform to all applicable European Union harmonization legislations relating to products which are intended to be placed on the market in the European Economic Area including, without limitation, CE marking Directives and Directives, as such directives are updated from time to time and enacted by the national laws ("EU Harmonization Legislation"). Supplier will ensure that the Goods have been designed and manufactured in accordance with the requirements of the EU Harmonization Legislation. Supplier will, at its cost, take all measures necessary to ensure that the design and manufacturing processes assure compliance of the Goods. As ADI may be considered a manufacturer of the Goods for the purposes of certain Directives of the EU Harmonization Legislation, Supplier expressly agrees, at its cost, to assist ADI with fulfilling the obligations of a manufacturer under said Directives.
32.8 US Equal Employment Opportunity Regulations. To the extent employment activities of Supplier occur in the United States and if otherwise applicable this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 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.
32.9 If this Purchase Order is funded under a United States Government prime or lower tiered subcontract, the provisions of 29 CFR Part 471, Appendix A to Subpart A (relating to the obligation to post a notice of employee rights under the National Labor Relations Act and to notify covered subcontractors of their obligation to do so) are incorporated by reference in this Purchase Order. 32.10 In accordance with applicable "Conflict Minerals" laws, ADI must determine whether its products contain tin, tantalum, tungsten or gold ("3TG") originating in the Democratic Republic of the Congo and adjoining countries ("Conflict Minerals"). To the extent Supplier supplies Goods containing 3TG to ADI under any Purchase Order, Supplier commits to have a supply chain process to ensure and document a reasonable inquiry into the country of origin of the 3TG minerals incorporated into such Goods. If requested, Supplier will promptly provide information or representations that ADI reasonably believes are required to meet its conflict minerals compliance obligations.
33. Applicable Law and Forum
33.1. Executive Escalation. Before a Party initiates any arbitration or litigation action, other than injunctive relief, that Party must notify the other Party in writing that the notifying Party requests an executive conference. The executive conference is to be held no later than 15 days after the date the notice is considered given under Section 36 (Notices). At least one executive of each Party will attend the conference. Each Party will present its view of the dispute, and the executives will enter into good faith negotiations to resolve the dispute. If the dispute is not resolved by the earlier of 30 days after the date the conference commenced or 45 days after the written notice is considered to have been given, then either Party may pursue resolution of the dispute consistent with the other terms of this Purchase Order.
33.2. United States. If ADI is a legal entity formed in the United States, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto), and the federal or state courts in New York, New York will have exclusive jurisdiction of any dispute.
33.3. Asia Pacific. If ADI is a legal entity formed in an Asia Pacific country, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the country under which the ADI entity is formed, excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto), and the courts of that country will have exclusive jurisdiction of any dispute except for the following locations where any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre ("SIAC") in accordance with the Arbitration Rules of the Singapore International Arbitration Centre ("SIAC Rules") for the time being in force, which rules are deemed to be incorporated by reference in this Section 31.2. The seat of the arbitration shall be Singapore. In relation to disputes concerning Purchase Order value below 1,000,000 USD, the Tribunal shall consist of sole arbitrator, while in relation to disputes concerning Purchase Order value above 1,000,000 USD, the Tribunal shall consist of three arbitrators, one nominee of each party and the two shall chose a third neutral arbitrator. The language of the arbitration shall be English. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration and the language of arbitration will be selected by ADI. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this Purchase Order, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator’s determination of the merits of the controversy.
33.4. Europe, Middle East, and Africa. If ADI is a legal entity formed in a European, Middle Eastern or African country or formed in a country not identified above, then the construction, interpretation, performance and enforcement hereof and all transactions hereunder and the parties relationship in connection therewith or any related claims whether founded in contract, tort or otherwise, will be governed by the laws of laws of England and Wales , without regard to or application of its principles or laws regarding conflicts of laws, and excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto) if applicable in such country. Any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be finally resolved by a panel of three arbitrators in accordance with the Rules for Arbitration of the International Chamber of Commerce. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration be London, England and the language of arbitration will be English.
33.5 Additional rules applicable to Arbitration: Any award will be payable in the currency of this Purchase Order. Either party may apply to the arbitrators seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Purchase Order, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrators’ determination of the merits of the controversy. The language of the arbitration will be English. Pending settlement or final resolution of any dispute, Supplier will proceed diligently with the performance of this Purchase Order in accordance with ADI’s directions.
All ADI remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to ADI at law or in equity.
Notices relating to this Purchase Order must be in writing and may be delivered personally, by overnight courier, or by certified first class mail, postage prepaid (each to the respective addresses appearing on the face of this Purchase Order); or sent by fax to the respective fax number provided by ADI or Supplier. Notice will be deemed given on the date delivered if delivered personally; three business days after being placed in the mail as specified above; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by fax.
Any news release, public announcement, advertisement, publicity or any other disclosure concerning this Purchase Order to any third party except as may be necessary to comply with other obligations stated in this Purchase Order requires prior written approval of ADI. Supplier will not use ADI’s name or marks or refer to or identify ADI in any advertising or publicity releases or promotional or marketing materials without ADI’s prior written approval. Furthermore, Supplier will not claim or suggest, implicitly or explicitly, that ADI’s purchase of its Goods use of its services or deliverables constitutes ADI’s endorsement of its Goods, services or deliverables.
37. Headings and Captions
Headings and captions are for convenience of reference only and in no way are to be construed to define, limit or affect the meaning or interpretation of any provision of this Purchase Order.
The failure or delay of either party to enforce at any time any of the provisions of this Purchase Order will not be construed to be a continuing waiver of those provisions, nor will any such failure or delay prejudice the right of the party to take any action in the future to enforce any provision. No waiver from ADI shall be effective unless set forth expressly in writing and manually signed by ADI.
If any provision of this Purchase Order (or portion thereof) is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, the parties agree that the court will construe the provision in a manner that renders the provision valid and enforceable to the fullest extent possible under the law of the applicable jurisdiction and that the remaining provisions will remain in full force and effect.
40. Supply Chain Security
Supplier will implement the Business Partner Criteria of any Supply Chain Security Program that the country of import for the Goods may adopt such as the U.S. Customs-Trade Partnership Against Terrorism (C-TPAT) or the Canadian Partners in Protection (PIP) Program.
41. Non-Exclusivity/No Commitment
Nothing in this Purchase Order will restrict ADI’s right to contract with any third party to provide or perform, or to provide or perform on its own behalf, products, or services similar or identical to the Goods provided to Supplier by ADI.
Translations in various languages of these General Terms and Conditions of Purchase may be available for reference. In case of inconsistencies between translations and the original English version, the English version shall prevail.
All provisions of this Purchase Order which by their nature should apply beyond its term will remain in force after any termination or expiration of this Purchase Order including, but not limited to, those addressing the following subjects: Import/Customs Compliance, Drawback, Offset, ADI-Supplied Materials, Tooling, Equipment and Technical Data, Price, Price: Most Favored Customer and Meet or Release, Invoicing and Payment, Set Off, Warranty, Cessation of Production, General Indemnification, Intellectual Property Indemnification, Insurance, Lien Waivers; Confidentiality/Data Privacy and Intellectual Property, Audit, Relationship Between the Parties/Independent Contractor, Applicable Law and Forum, Publicity, Waiver, and Survival.