- Delivery and Title. Supplier shall deliver the Goods on the delivery date(s) in the P.O. Time is of the essence. KAM may cancel the P.O. if delivery is not on time. Title to, and risk of loss for the Goods shall pass from Supplier to KAM when delivered and accepted by KAM at 200 Flanders Road Westborough, Massachusetts 01581. Any terms and conditions which conflict with or deviate from these terms and conditions shall not apply unless KAM has expressly agreed to their application in writing in each individual case.
- Shipment. If the price for the Goods includes the cost of shipment, Supplier can ship the Goods per its normal mode of delivery. If the price for the Goods does not so specify that it includes the cost of shipment, Supplier shall ship the Goods as directed or otherwise approved by KAM. The costs and expenses relating to shipment of the Goods and any specific requirements are set forth in the P.O.
- Labor and Materials. Supplier shall furnish all labor and materials (e.g., facilities, equipment and packaging) necessary to perform the P.O. Supplier assumes full responsibility, liability, and risk of loss for the safekeeping and safe handling of all such KAM material or equipment while such is in Supplier’s care, custody and control.
- Quality. Supplier shall establish, and continuously monitor and improve, a formal quality management program focused on the Goods. Supplier shall: (a) interact with KAM’s designated administrator; (b) notify KAM sufficiently in advance of changes in components, materials, manufacturing processes, locations or test methods (and the probable effect on KAM); and (c) pre-qualify changes at KAM sites. If requested by KAM, Supplier shall provide KAM with a complete and accurate Certificate of Analysis with each shipment of Goods. Supplier acknowledges that KAM will rely on the Certificate of Analysis and intends to introduce Goods directly into its manufacturing processes without independent analysis by KAM. Supplier shall respond, as reasonably directed, to any KAM request for corrective action for instances where supply of Goods does not meet KAM requirements. This includes completion and documentation of such items as the following within the time constraints stipulated by KAM: containment actions to minimize further impact, incident investigation, determination of root cause, countermeasures to prevent recurrence, and verification of the effectiveness of any actions taken.
- Personnel and Subcontracting. Supplier shall provide any personnel specified in the P.O.. Supplier subcontractors shall comply with Supplier’s obligations and Supplier shall be responsible for such compliance; however, Supplier shall not subcontract or engage any subcontractor(s) without KAM’s prior written approval.
- Independent Contractor. Supplier is an independent contractor of KAM. The individuals and entities retained by Supplier shall be under its exclusive direction and control and shall not be considered an employee, agent or contractor of KAM.
- Business Ethics. Supplier shall not pay any salaries, commissions or fees (or make any other payments or rebates) to any employee, officer or director of KAM (or any designee of such employee, officer or director) or favor any such individual with gifts, entertainment, services or goods.
- Confidential Information. Supplier shall protect all KAM information with at least the same level of care as Supplier protects Supplier’s own confidential information, but not less than a reasonable level of care. Supplier shall not use or disclose KAM confidential information without KAM’s prior written approval and shall return such information to KAM at the end of the Term or upon KAM’s prior request.
- Privacy. Unless agreed otherwise in writing, any personally identifiable information provided by one party to the other hereunder may only be used for conducting the business transaction(s) that is the subject of this P.O. KAM does not consent to Supplier’s use of any personally identifiable information provided by KAM, its subcontractor, KAM, customer, vendor, or employee, for any direct marketing, nor to the transfer of such information to any third party; (b) Supplier will immediately notify KAM verbally, and promptly thereafter in writing, whenever the Supplier has experienced an electronic or physical security breach and such breach exposes KAM -supplied personal identifier information of third party customers, potential customers, vendors, or contractors. For the purposes of this Section, “security breach” includes: (i) the loss of personal data; (ii) the unauthorized or unlawful processing, disclosure, access, alteration, corruption, transfer, sale, rental, destruction, or use of personal data; and (iii) relevant definitions provided by applicable law. Supplier will fully cooperate with KAM in complying with any breach notification requirements of any State, the Federal government, or any other country. To the extent that Supplier is negligent, has engaged in any intentional misconduct, or fails to adhere to any of the KAM security requirements, then Supplier will indemnify, defend, and hold KAM harmless from and against any loss, cost damages, claims, or liability arising from or relating to Supplier’s failure.
- Intellectual Property. Supplier hereby irrevocably assigns and transfers to KAM all right, title and interest in and to any work product (e.g., drawings, designs, plans, reports, studies, other written material or software) or Goods developed for or delivered to KAM under the P.O.. This assignment excludes existing intellectual property of Supplier (including any modifications or enhancements thereto) provided to KAM under the P.O.. Supplier hereby grants KAM a nonexclusive, royalty-free, worldwide, perpetual and fully transferable non-exclusive license for KAM with the right to grant sublicenses through all tiers, (and its affiliated entities and third party providers) to use such Supplier intellectual property in connection with the Goods; including the sale of Goods by KAM. KAM retains all right, title and interest in and to, and Supplier shall not use (except as necessary to perform the P.O.), its data and other intellectual property (and materials).
- Publicity. Supplier shall not: (a) use the name, trade name, oval, trademarks, service marks or logos of KAM in any manner without KAM’s prior written approval or (b) represent (directly or indirectly) that any goods or service offered by Supplier has been approved or endorsed by KAM.
- Invoice and Payment. After delivery of the Goods, Supplier shall submit an invoice to the address specified in the P.O. for the fees, taxes and, if reimbursable, expenses applicable to the Goods delivered. Supplier’s invoice shall be accompanied by such records as KAM deems adequate to verify the amounts billed and shall be in the form required by KAM. Incomplete or incorrect Invoices will not be processed or All expenses, charges and costs are included in the fees and will not be reimbursed. KAM shall pay Supplier (via electronic funds transfer, wire or check, as KAM elects) within thirty (30) days after receipt of a properly prepared and correct invoice and with the scheduled payment run on or following the invoice due date, subject to the applicable local jurisdiction.
- Taxes. Each Party shall bear and remit any sales, use, value added, goods, transfer or similar taxes imposed upon it by the taxing authority. Where imposed upon Supplier, without recovery from KAM, Supplier shall bear those Taxes. KAM shall withhold income or other taxes from payments to Supplier to the extent required by the taxing authority; KAM shall not be required to “gross up” or increase any payment to Supplier for such taxes. KAM shall not be responsible for any other taxes.
- Audits. Upon written notice from KAM, Supplier shall provide KAM (and its accountants and auditors) with access to Supplier’s locations and records for KAM to audit Supplier’s compliance with this P.O., including to verify if the charges are accurate.
- Supplier represents and warrants to KAM the following:
- the Goods are in compliance with, or exempt from, all applicable chemical control laws, including, without limitation, the Toxic Substances Control Act (“TSCA”) and the equivalent legislation in Canada, Colombia, EU, United Kingdom, Turkey, Australia, China, Japan, Korea, Taiwan and the Philippines, respectively. Suppler will promptly inform KAM in writing of any change in the Good’s regulatory status under any applicable law, statutes, administrative order or regulation;
- To the extent that the Goods fall within the scope of EU reach, any of the substances contained in the Goods are registered or will be registered for the use(s) as identified by the KAM or will rely on a valid exemption for such registration, then same shall be communicated to the KAM promptly in writing in advance of shipment.
- Warranty. Supplier represents and warrants that: (a) it is transferring good and clear title to the Goods (free and clear of any claims, liens or encumbrances), it has sufficient right, title and interest to assign and transfer the ownership rights and grant the licenses hereunder and the Goods (and process for making the Goods) do not infringe the proprietary rights of a third party; (b) the Goods shall meet the specifications and descriptions in the P.O.;
- the Goods shall be commercially similar to previous goods, be free of contaminants and be of merchantable quality; (d) Goods that are equipment (including parts) shall be new, be free of defects in materials, workmanship, if any, and design and be fit for the particular use;
- all work by Supplier shall be performed in a good, prompt and professional manner by qualified personnel in accordance with the P.O. and consistent with best practices.
- for twenty-four (24) months from the date of shipment, whichever comes last. at KAM’s option and as applicable, Supplier shall promptly either: replace non-conforming Goods, re-perform non-conforming services or refund the purchase price of non- conforming Goods.
- the Goods are fee of any and all intellectual property rights of third parties; including but not limited to, patent rights, copyrights or trademark rights of third parties which oppose or restrict the use provided for in the normal course.
- Indemnity. Supplier shall hold harmless, defend and indemnify KAM and its officers, directors, employees, agents and consultants from and against any loss, liability (including settlements, judgments, fines and penalties) or costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any action, suit or proceeding against KAM and its officers, directors, employees, agents and consultants by a third party (including employees of either party or government agencies) alleging it arises from acts or omissions (including what would be negligence, willful misconduct or breach of the P.O.) by Supplier (or its subcontractors).
- Insurance Coverage. Supplier, at its expense, shall carry and maintain in force at all times the following insurance, on policy forms and with insurance companies authorized to do business in the jurisdictions where Goods are to be delivered, at the indicated minimum coverage limits or such higher limits as provided under insurance currently held by Supplier as of the effective date of the P.O., whichever is greater.
- Workers’ Compensation (or its equivalent outside the U.S.) – in accordance with all applicable statutory and legal requirements; Employer’s Liability (or its equivalent outside the U.S.) if applicable
- $500,000 per accident/per employee; and such other insurance as may be required by law. This policy shall include a waiver of subrogation to KAM.
- Commercial General Liability (Occurrence Form), including Contractual Liability and liability for Goods and Completed Operations, in a combined limit for Bodily Injury and Property Damage – $1,000,000 per occurrence. This policy shall name KAM as an additional insured.
- Business Automobile Liability, for all licensed vehicles, in a combined single limit for Bodily Injury and Property Damage –
- $1,000,000 per occurrence. If Supplier operates licensed vehicles owned or leased by KAM, the Supplier’s insurance policy shall be the primary insurance coverage.
- Other insurance appropriate for Supplier’s business or as required by law.
- Insurance Documentation. Upon the request of KAM, Supplier shall provide KAM with certificates of insurance evidencing the coverage referenced in the above section. Such certificates shall include a provision that the insurer will give KAM at least thirty (30) days advance notice of any changes in, cancellation of or non-renewal of coverage.
Supplier shall require that any subcontractor it employs carry the same coverage in the same limits as set out above, and any other coverage as Supplier deems appropriate, and shall provide proof. Supplier’s failure to comply with any of the insurance requirements in the P.O., including failure to secure endorsements on policies as may be necessary, shall not limit or relieve Supplier from any of its obligations under the P.O.
- Term and Termination. The P.O. shall continue for the period specified (or, if not specified, until completed) unless terminated earlier (in whole or in part): (a) as set forth herein; (b) by KAM, with or without cause, upon immediate notice; or (c) by Supplier if KAM fails to cure a breach within thirty (30) days after notice (the “Term”). Any permitted termination (or expiration) shall be without penalty (including termination fees) and shall not relieve or release either party from any rights, liabilities or obligations that have accrued under the law or the P.O.
- Force Majeure. If a party cannot perform due to fire, flood, hurricanes, earthquakes, other elements of nature, war, terrorism, riots, rebellions, revolutions or civil dispute, the affected party shall be excused from such performance while the event continues; provided, the event is beyond the affected party’s reasonable control (and could not be prevented by reasonable precautions) and the affected party is diligently attempting to promptly recommence performance. The affected party shall promptly give notice to the other of the event and, if non-performance continues for seven (7) days (or more), the other may terminate the P.O. (or affected portion).
- Notices. All notices and approvals under the P.O. shall be in writing and deemed given to the receiving party when: (a) received at the facsimile number specified; (b) delivered by hand to the person specified at the address specified; or (c) delivered by registered or certified mail, return receipt requested, to the person specified at the address specified. If a party does not specify such information, the address on the P.O. shall be used. Either party may change its information upon ten (10) days prior written notice to the other.
- Access to Financial Records. During the Term upon agreement at least five (5) days prior written’ notice and during regular business hours, KAM or its third-party representatives, may at its own expense review books, financial records and other documents of the Supplier related to this P.O. and the Supplier agrees that it shall provide to KAM or its designated representatives access to all such records required for such review.
- Assignment. The P.O., including any right or obligation hereunder, may not be assigned, transferred or delegated by Supplier.
- Applicable Law and Jurisdiction. The P.O. shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts without giving effect to the principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods shall not govern this P.O.. Each party consents and submits to the exclusive jurisdiction of, and service of process by, the United Commonwealth District Court for Massachusetts or the state courts of Massachusetts.
- Severability. Each provision herein shall only apply to the extent permitted by applicable law.
- Entire Agreement. The P.O. supersedes all prior discussions and agreements, and represents the entire agreement between the parties with respect to the subject matter hereof. The English version of this P.O. shall govern and control any translation of this P.O. into another language. This P.O. may be executed in multiple counterparts, each of which will be deemed to be an original, and all of which will constitute one and the same instrument.
- Compliance with Laws. Supplier agrees to comply fully with all federal, state, and local laws, rules and regulations, statutes and administrative orders, including, but not limited to, any anti bribery, export control, economic sanction laws and hazardous materials transportation and hazardous communication standards for the labelling, handling, transportation, storage import, export, resale, disposal, payment and use of the Goods. Should any provision hereof, become illegal, in whole or in part, such provision will be amended to be consistent with applicable laws, rules or regulations statutes and administrative order.