GENERAL. This purchase order (whether used as an offer, acceptance of an offer, or confirmation of a contract) is conditioned on and limited to its terms. By performing or by acknowledging receipt of this purchase order ("Contract"), Seller assents to all its terms and conditions. "Goods and/or Services" shall mean the goods supplied and/or services performed hereunder. Ascend, as defined on front of agreement ("Buyer") objects to any different or additional terms in Seller's quotations, acknowledgments, acceptances or similar documents. Specifications, drawings and other attachments or documents referred to herein are incorporated into and made a part of this Contract. Notwithstanding the foregoing, if Buyer and Seller have a fully executed agreement pre-dating this Contract (such as a Master Agreement, Master Services Agreement), terms of that agreement supersede the terms and conditions of this Contract.
DELIVERY; TITLE. Seller acknowledges that TIME IS OF THE ESSENCE in the performance and delivery of the Goods and/or Services by the date set forth on the face of this Contract. Title to materials, supplies and equipment comprising part of the Goods and/or Services shall pass to Buyer consistent and in alignment with the point of Delivery per the agreed Incoterms rule. Parties agree that any reference to Incoterms will be construed to mean Incoterms 2010 as issued by the International Chamber of Commerce.
WARRANTY. Seller warrants that the Goods and/or Services will: (a) be of quality, design, material and workmanship, free of defects for one (1) year from date of final payment, (b) in the case of services, consist of furnishing all operations, labor, equipment, materials and supplies and doing all things necessary for proper performance as described in this Contract, (c) conform to agreed upon specifications, drawings, data and samples and all technical requirements in Seller's proposals, and (d) be merchantable and fit for the purposes sold. This warranty continues in effect after acceptance and is in addition to warranties offered by Seller. Seller assigns to Buyer all applicable manufacturers' warranties. Seller shall promptly reimburse Buyer for its costs in remedying defects or, at Buyer's option, Seller shall remedy such defects at its own expense and with all possible speed. In addition to its other rights, Buyer may withhold money otherwise due Seller to cover Buyer's costs and damages.
PRICE COMPETITIVENESS. Seller warrants that prices for the Goods and/or Services are not higher than those charged other customers for the same or similar Goods and/or Services in similar quantities. If Buyer can purchase Goods and/or Services of like quality at a lower delivered cost than under this Contract, Buyer may notify Seller and Seller shall have 15 days to meet such lower cost for an equal quantity of Goods and/or Services. If Seller does not meet such lower cost, Buyer may purchase such Goods and/or Services from the other source and deduct such quantity from Buyer's obligation hereunder, but this Contract otherwise remains unaffected.
PAYMENT/TAXES/LIENS. Unless otherwise specified in this Contract, payment is due ninety (90) days after invoice date, or upon completion and delivery of the Goods and/or Services, whichever is later. Buyer's policy is to issue payments on a weekly basis. Payment by Buyer does not constitute acceptance. Seller's invoices shall list taxes separately. Buyer is liable only for taxes that Seller is authorized to collect from Buyer by law. Buyer may withhold payment until Seller, if requested, has furnished satisfactory releases of all liens and claims relating to the Goods and/or Services. Seller shall indemnify and defend Buyer from all liens and encumbrances arising out of the Goods and/or Services.
INSURANCE AND SAFETY REQUIREMENTS. Prior to performance of any Goods and/or Services under this Contract, Seller shall obtain at its own expense, compliance to Buyer's insurance and safety requirements. Plant site compliance access is managed by Avetta (www.avetta.com) monitoring service for Buyer. Seller will provide Avetta with Certificates of Insurance evidencing the coverage required herein or in any agreement between the parties and stating that no reduction, cancellation or expiration of such insurance coverage shall become effective until thirty (30) days from the date written notice is mailed to Buyer. Contractors performing mechanical services or general labor on site must forward a copy of the required OSHA logs and insurance, per agreement or purchase order: Ascend Performance Materials Holdings Inc., c/o Avetta LLC, PO Box 51387, Irvine, California, 92619. Service suppliers and consultants accessing Buyer’s site need to forward a copy of their required insurance per agreement or purchase order to: Ascend Performance Materials, Attn: Treasury Dept., 1010 Travis Street, Suite 900, Houston, TX 77002.
DRAWINGS/SPECIFICATIONS/INSPECTIONS. Buyer shall have access to Seller's facilities to inspect the Goods and/or Services at all reasonable times. No such approval/inspection shall relieve Seller of its obligations. If requested, Seller shall submit drawings and specifications ("Descriptions") to Buyer for approval. All Descriptions shall be Buyer's property, and Seller shall not use or permit others to use such Descriptions for any other work.
PATENTS. Seller shall indemnify, defend and hold Buyer harmless: (a) from claims for infringement of any patent, copyright, trademark or trade name because of the manufacture, use, or sale of the Goods and/or Services, and (b) for any costs, expenses, liability and damages, including attorneys' fees, which Buyer may incur as a result of any alleged infringement. Buyer shall give Seller written notice of any such suit or claim and, at Buyer's request, Seller shall promptly assume its defense.
COMPLIANCE WITH LAWS. Seller represents that the Goods and/or Services will comply with all applicable federal, state and local laws, rules, regulations, and executive orders. Seller/Supplier acknowledges that U.S. Customs and Border Protection ("CBP") is actively enforcing the mandatory pre-export declaration referred to as the Importer Security Filing (ISF), which applies to all ocean container shipments ("LCL" and "FCL") destined for import into the U.S. Buyer, when designated as the importer of record, is responsible for timely, complete, and accurate submission of ISF data to CBP. Seller agrees to fully cooperate and to cause its freight forwarder, carriers, agents and/or representatives to provide the required data elements on the worksheet provided by Buyer no later than 72 hours prior to the ship sailing. Seller also agrees to provide timely written notification of the same as soon as changes are known. Items are considered on COMPLIANCE HOLD and must not be laden on the vessel until "OK to load" authorization is received from Buyer. If Seller furnished items set sail in violation of the filing requirements of the ISF regulations, Buyer may cause such items to be returned to Seller for reshipment in order to meet the ISF filing requirements. Seller agrees to reimburse, and indemnify Buyer against, any expenses Buyer incurs in connection with return and reshipment of such items, as well as any penalties, fines and other expenses incurred by Buyer.
CANCELLATION/TERMINATION. Buyer may terminate all or part of this Contract for its convenience upon written notice to Seller. Buyer shall pay Seller reasonable charges for the portion of the Goods and/or Services already performed hereunder.
CONFIDENTIALITY. Seller may gain information about Buyer's operations, plans, equipment, finances, products, processes and customers ("Buyer Information"). Seller shall cause all Buyer Information to be kept confidential and not to be disclosed to others except with Buyer's prior written consent. Nothing in this paragraph shall prevent Seller from disclosing information which it can show: (a) is published and in the public domain other than through acts or omissions of Seller, its employees or agents; (b) was rightfully made known to Seller by third parties (other than those acting directly or indirectly for Buyer (or its predecessor, Solutia Company)), without restriction on disclosure; or (c) was known at the time of entering into this Contract, and was not acquired from Buyer, Solutia or the employees or agents of either. Seller shall deliver to Buyer, upon request, all drawings, specifications, memoranda, notes, materials and all copies containing Buyer Information. These obligations shall continue beyond the termination of this Contract.
CHANGES. Buyer may change specifications, packaging, delivery and transportation at any time. If the change affects the cost or time required for performance, a fair adjustment will be made and confirmed by Buyer issuing a Change Order. Seller shall notify Buyer prior to making any changes to raw materials, methods of manufacture, production equipment or locations involved in the performance of this Contract and shall obtain Buyer's written consent prior to making any such changes(s). Buyer may terminate this Contract if Buyer does not consent to the changes.
BUYER'S PREMISES. If Seller enters Buyer's premises, Seller shall: (a) comply with Buyer's site rules, practices and policies; (b) indemnify and defend Buyer, its employees and officers against all liabilities and losses of any kind, including costs, expenses and attorneys' fees, due to injuries (including death) or damage to persons or property occurring to or caused by Seller, its agents or subcontractors, or any of their employees, such indemnity to include injuries or damage caused by the joint or concurring negligence of Buyer (but not those caused by the sole negligence of Buyer); (c) maintain the following minimum insurance: (i) Workers' Compensation - Statutory; (ii) Employer's Liability $1,000,000 each accident/disease-each employee/disease - policy limit; (iii) Commercial General Liability (Bodily Injury, Property Damage, Products and Completed Operations and contractual liability on an occurrence form of policy naming Buyer as additional insured) - $2,000,000 each occurrence, combined single limit; (iv) Comprehensive or Commercial Automobile Liability (Bodily Injury or Property Damage for owned, non-owned and hired vehicles and naming Buyer as additional insured) - $1,000,000 each occurrence, combined single limit; (v) Umbrella Liability Insurance - $1,000,000 each occurrence, excess coverage over underlying primary insurance required and naming Buyer as additional insured. Seller will secure from its Workers' Compensation and Employer's Liability carrier a waiver of subrogation in favor of Buyer, its employees and agents and furnish Buyer certificates confirming such coverage.
ASSIGNMENT/ SUBCONTRACTING/ INDEPENDENT CONTRACTOR. Seller shall not assign, subcontract or delegate all or any part of this Contract without Buyer's prior written consent. Assignment with consent shall not relieve Seller of any obligations hereunder. Seller is and shall remain an independent contractor.
MISCELLANEOUS. THIS CONTRACT INCORPORATES THE UNIFORM COMMERCIAL CODE AS ADOPTED IN TEXAS, AND SHALL BE CONTROLLED BY AND INTERPRETED ACCORDING TO TEXAS LAWS and is the complete understanding and statement of the agreement. Any modification, rescission or waiver must be in writing and signed by both parties. A waiver of any breach of these terms shall not waive any other breach. Section headings are provided for convenience only. The obligations under sections 3, 7, 8, 11 and 13 of this Contract are of a continuing nature and shall survive any termination of the Contract, any suspension, completion or acceptance of the Goods and/or Services, or final payment to Seller. Seller shall bind all its subcontractors to the terms of this Contract that are applicable to the subcontracted Goods and/or Services.