PURCHASE ORDER TERMS AND CONDITIONS
These Terms and Conditions (these “Terms and Conditions”) and the written purchase order that accompanies, makes reference, attaches, or incorporates them (the “Purchase Order”), constitute the sole and entire agreement (collectively, the “Agreement”) on which Buyer agrees to be bound. The term “Buyer” includes Poliblend S.p.A., or any of its affiliates or subsidiaries or an entity subject to the common control of it which execute a Purchase Order. The term “Seller” denotes the party to the Agreement who is to supply the goods or services specified in the Purchase Order.
1. General. Buyer will not be liable for any goods or services delivered without an executed Purchase Order. Buyer will not be liable for any verbal orders given by employees or agents of Buyer.
2. Terms and Conditions: The terms and conditions set forth herein constitute the complete and exclusive agreement of the parties hereto and Seller hereby assents to all the terms and conditions set forth herein. Buyer objects to any different, additional or conflicting terms in Seller’s quotations, acknowledgements, acceptances or similar documents. No statements or agreements, oral or written, not contained herein shall vary or modify the terms hereof and neither party shall claim any amendments, modification or release from any provisions hereof unless the same is in writing, signed by each of the parties hereto. Any written amendment, modification or release shall specifically state that such is an amendment to this Agreement.
3. Goods: If a Purchase Order involves the sale of goods, the following provisions shall apply:
4. Services: If a Purchase Order involves the provision of services, the following provisions shall apply
5. Cash Discount: If Buyer is entitled to a cash discount, the period of computation for that discount will start on the date of delivery of the goods or services or the date of receipt of a correct and complete invoice, whichever is later. In case of non-conforming goods or services, the computation period shall start on the date final approval for payment is authorized by Buyer. If a discount is part of the Purchase Order, but the invoice does not reflect the existence of a cash discount, Buyer is entitled to a cash discount with the period commencing on the date it is determined by Buyer that a cash discount applies.
6. Invoices: Seller shall prepare and deliver to Buyer an invoice for all goods and services purchased hereunder. Seller’s invoice shall (a) include the applicable Purchase Order number, (b) list all goods and services provided, and (c) separately list any applicable taxes or freight charges. Unless otherwise specified in the applicable Purchase Order, payment is due sixty (60) days after invoice date or upon delivery of the goods or services, whichever is later. Payment by Buyer does not constitute acceptance and payment of Seller’s invoice is subject to adjustment for shortage or rejection of non-conforming goods by Buyer.
7. Taxes: To the extent permitted by applicable law, Seller will bear and pay all applicable taxes which are based on or measured by net income, gross income or gross receipts including any withholding taxes, surcharges and stamp duty levied against Seller for the privilege of contracting or doing business in a jurisdiction. If Seller is required by law to collect VAT or sales and use tax (including any gross receipts tax imposed similar to VAT or a sales and use tax) from Buyer on behalf of any taxing jurisdiction, Seller will provide to Buyer invoices which separately state and clearly indicate the amount of tax and Buyer will remit any such tax to Seller. Seller will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefor including registration, collection of taxes and the filing of returns where applicable. Notwithstanding whether Seller must collect VAT or sales and use tax from Buyer, Seller will state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which goods or services were provided. If applicable, in lieu of payment for any VAT or sales and use tax, Seller will accept a properly executed exemption or direct pay certificate from Buyer. The determination of whether an exemption or direct pay certificate will be submitted to Seller in lieu of payment for any VAT or sales and use tax will be made by Buyer on a location-by-location basis, and Seller shall provide all necessary assistance and support to Buyer for the purpose of securing such exemption or direct pay certificate to the extent reasonably required by Buyer according to applicable law. With the exception of VAT or sales and use tax as described above, all other taxes, however denominated or measured, imposed upon Seller, or the value, price or compensation under the Purchase Order, or upon the goods or services provided hereunder, will be the responsibility and liability of Seller.
8. Assignment/Subcontracting: Seller shall not assign, subcontract or delegate all or any part of a Purchase Order without the prior written consent of Buyer and any attempt to so assign or subcontract shall be null and void. Assignment with consent shall not relieve Seller of any obligations hereunder. Seller is and shall remain an independent contractor of Buyer.
9. Inspection and Rejection: All goods and services shall be received subject to Buyer’s inspection and acceptance or rejection within sixty (60) days of receipt. Rejected goods will be held at Seller’s risk subject to Seller disposal or returned to Seller at Seller’s sole expense. Rejected services shall be reperformed by Seller at Seller’s sole expense.
10. Changes: Buyer shall have the right to make changes to the specifications set forth in a Purchase Order. Upon such change, proper adjustment in price and shipping schedule shall be made and a modified Purchase Order shall be executed by both Buyer and Seller; provided that Buyer shall have the right to require any change that does not modify volumes by more than twenty percent (20%) and the Seller accepts hereby not to raise any objection and to perform the changes requested by the Buyer within the above threshold.
11. Price Competitiveness: Seller represents and warrants that the prices specified in the Purchase Order do not exceed the current selling price for the same or substantially similar goods or services to any other purchasers, taking into account quantity ordered. If Buyer can purchase goods or services of like quality at a lower delivered cost than under the applicable Purchase Order, 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 under the applicable Purchase Order.
12. Force Majeure: Neither party will be in default for any delay or failure to perform its obligations under the Agreement if caused by an extraordinary event beyond the reasonable control of the claiming party and without the fault or negligence of such party, including, but not limited to, an event which falls into one or more of the following categories: act of God, fire, flood, storm, earthquake; war (whether declared or not), armed conflicts, riot, civil commotion ,terrorism, acts of piracy, epidemic; nuclear, chemical or biological contamination; explosion or malicious damage; compliance with a law or governmental order, rule, regulation or direction, in each case irrespective of whether the foregoing meet the criteria of force majeure under applicable governing law (“Force Majeure Event”). In order to claim relief from its obligations in accordance with this clause, the party affected by a Force Majeure Event must furnish prompt written notice of any delays or non-performances (including its anticipated duration) after becoming aware that it has occurred or likely will occur. If Seller is unable to perform for any reason, Buyer may obtain the impacted goods and services from other sources and reduce its obligations owing to Seller accordingly without liability to Seller. Within three (3) business days after written request by the other party, the non-performing party will provide adequate assurances that the non-performance will not exceed thirty (30) days. If the non-performing party does not provide those assurances, or if the non-performance exceeds thirty (30) days, the other party may terminate the subject Purchase by written notice given to the non-performing party before performance resumes.
13. Default: Time is of the essence in the performance of this Agreement by the date set forth in the applicable Purchase Order. Failure on the part of Seller to strictly meet Buyer’s delivery requirements shall give Buyer the right to recover damages from Seller for non-performance, and shall also give Buyer the right to reject delivery and/or cancel all or part of the applicable Purchase Order. Should Seller default in whole or in part as to quantity or quality of the goods or services under this Agreement, Buyer shall have, in addition to any other rights it may have at law or in equity, the right to acquire suitable replacement goods or services and charge any loss or damage caused thereby to Seller. Failure of Buyer to insist on strict and timely performance of this Agreement shall not be a waiver of any right or remedy that it may have and shall not be a waiver of any subsequent default. Neither payment for nor acceptance of any or all of the goods or services shall relieve Seller of liability for failure to fully perform its obligations. Should legal proceedings be instituted by Buyer to recover its loss or damage hereunder, it shall, in addition to any other remedies, be entitled to recover from Seller all court costs, attorney’s fees and any other expenses incurred by Buyer incident to such proceedings.
14. Indemnification: Seller shall indemnify, defend, and hold harmless Buyer, its directors, officers, employees, agents, representatives, successors, assigns, and customers (“Indemnitees”) from and against all liabilities, expenses, suits, claims, actions, demands, judgments, settlements, costs, losses, fines and penalties, including, without limitation, legal fees, costs and expenses of litigation determined on a full indemnity basis (“Losses”), that are suffered or incurred by an Indemnitee arising out, relate to or in connection with: (i) the goods or services, liens on goods, defects in the goods or services, the manufacture, delivery, use or misuse of the goods or services; (ii) the performance of the Agreement; (iii) any infringement or alleged infringement of any third party intellectual property rights suffered by Buyer as a result of Buyer's possession, use and/or exploitation of any of the goods or services; or (iv) breach of any of the provisions of the Agreement, including where such Losses are caused in whole or in part by any negligence or any act or omission of Seller, its directors, officers, employees, subcontractors, agents, representatives, successors, or assigns, and regardless of whether or not such negligence or acts or omissions were caused in part by the Indemnitees. In the event of an allegation of intellectual property misappropriation or infringement, Seller will, at its own expense and at Buyer’s option, either: (a) procure the right for the Indemnitees to continue using, having used, making, having made, selling, having sold, importing and having imported the goods; (b) make such alterations, modifications or adjustments so that the goods so produced become non-infringing without incurring a material diminution in performance or function; or (c) refund the purchase price. All such obligations of Seller to indemnify, defend and hold harmless Buyer are in addition to Seller’s warranty obligations and all other rights or remedies of Buyer and will survive acceptance and use of, and payment for, the goods or services, and expiration, termination or cancellation of this Agreement. Where the indemnities in this clause refer to persons other than the Buyer, the Buyer holds the benefit of the indemnity as principal and on trust for each of those other persons.
15. Liens, Claims, and Encumbrances: Seller represents and warrants that all goods and services covered by a Purchase Order which are delivered and accepted by Buyer are free and clear of all liens, claims, and encumbrances of any kind.
16. Confidentiality: During the term of the Agreement and for five (5) years after its cancellation, termination or expiration, Seller shall not make use of Buyer's Confidential Information (as defined herein) for purposes other than the fulfillment of the obligations under the Agreement, or disclose to any person or entity, other than those of its employees who have a need to know, any Confidential Information, whether written or oral, which Seller obtains from Buyer or otherwise discovers in the performance of the Agreement. “Confidential Information”, as used in the Agreement, will mean all information relating to Buyer's business which is not generally available to the public. Confidential Information includes all applicable information that Seller possesses that predates the Agreement. The foregoing provisions of this Section shall not apply to any information that is: (i) rightfully known to Seller prior to disclosure by Buyer; or (ii) rightfully obtained by Seller from any third party; or (iii) made available by Buyer to the public without restrictions; or (iv) disclosed by Seller with prior written permission of Buyer; or (v) independently developed or learned by Seller through legitimate means; or (vi) disclosed by Buyer to a third party without a duty of confidentiality on the third party; or (vii) disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction. Seller will provide reasonable prior written notice to Buyer if it is required to disclose any of Buyer's Confidential Information under operation of law. Buyer expressly reserves the right to disclose any of the terms of the Agreement or any information relating to the Services, including but not limited to pricing, to third parties where such disclosure is in the legitimate interests of the Buyer. Seller will provide reasonable prior written notice to Buyer if it is required to disclose any of Buyer’s Confidential Information under operation of law and disclose only the Confidential Information that Seller is legally required to disclose. Seller will immediately notify Buyer of any disclosure of any Confidential Information that is not permitted by this Agreement and will be responsible for the disclosure or other misuse of Confidential Information. Buyer makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information. Buyer may, in its sole discretion, elect at any time, by written notice to Seller, to terminate Seller’s further use of Confidential Information. Upon such election or the expiration or termination of this Agreement, Seller shall immediately return to Buyer all Confidential Information and copies thereof and erase any digitally held Confidential Information. Expiration or termination of this Agreement will not affect Seller’s continuing obligations in this Section. Buyer expressly reserves the right to disclose any of the terms of this Agreement, including, without limitation, pricing, to third parties.
17. Legal Compliance: Seller represents and warrants that the performance of this Agreement and the furnishing of goods and services ordered herein shall be in accordance with the applicable standards, provisions, and stipulations of all applicable Federal, state, or local laws, rules, regulations, and ordinances.
18. Data Privacy: Seller warrants and undertakes that Seller's processes, services and treatment of all personal information that it may receive, access and/or process on behalf of Buyer (and/or Buyer's employees, customers or suppliers) or otherwise in connection with the Agreement comply with all applicable laws regarding privacy or personal information (as amended and collectively, “Privacy Laws”) and that Seller shall comply with such Privacy Laws. In particular, Seller shall ensure that any personal information is used or disclosed by it only as needed and to the extent necessary to perform this Agreement and that the Seller takes all reasonable steps to ensure that the personal information is protected from misuse, interference and loss, and unauthorized access, modification and disclosure. Seller shall not transfer any personal information to any third party without the prior consent of Buyer. If applicable, Seller agrees to execute a data processing agreement with Buyer in the form required by Buyer to ensure ongoing privacy protection for individuals. Without limiting Seller’s obligations under the Privacy Laws, Seller will notify Buyer immediately in writing of any: (i) actual or suspected breach of this Section; and (ii) of any complaint or request by any individual concerning personal information or relating to Buyer's obligations under any of the Privacy Laws; or (iii) any actual or suspected unauthorized access, disclosure or loss of personal information. Seller will provide full cooperation and assistance to Buyer regarding any such complaint, request or unauthorized access, disclosure or loss. If Seller fails to comply with any of the Privacy Laws, Buyer may terminate this Agreement immediately without further liability. Without limiting Seller’s obligations under the Privacy Laws, Seller agrees that it will not notify any individual or body of any actual or suspected unauthorized access, disclosure or loss of the Buyer’s personal information without the Buyer’s prior written consent. By submitting business contact and personal information about Seller and/or its employees to Buyer, Seller confirms having received Buyer’s privacy notice related to the collection, processing, storage, use and transfer of that information to/by Buyer and (to the extent permitted by applicable laws) all its controlled entities, affiliates and subsidiaries in the United States of America, Europe and elsewhere as described in Buyer’s privacy notice and their authorised third-party contractors or agents for the purpose of: (a) facilitating Seller's business relationship with Buyer; (b) enhancing Buyer's ability to contact Seller and its employees; and (c) enabling Buyer to process and track Seller's transactions with Buyer through various internal systems and external third parties (“Purpose”). Seller warrants and undertakes that it will obtain all the necessary consent from the relevant individuals and fulfil all the obligations under the Privacy Laws before submitting any personal information to Buyer for Buyer’s processing of such personal information as agreed in these Terms and Conditions. Buyer shall use the information supplied solely for the Purpose and shall store the data for as long as is strictly necessary to be able to complete the Purpose as described in Buyer’s privacy notice, subject to the requirements of applicable laws and any separate agreement entered into by the Buyer and Seller.
19. Compliance with Trade Controls: Seller warrants and agrees that: (i) Seller's provision of any Services, goods, commodity, software or technology will not cause Buyer to: (a) violate any applicable Trade Controls (as defined herein); (b) unless otherwise agreed between the parties elsewhere in the Agreement, be identified as “Importer of Record” or a party to the importation of Services; or (c) unless otherwise agreed between the parties elsewhere in the Agreement, be responsible for obtaining or submitting any required licences, approvals or notices or be responsible for the payment of any associated duties, taxes or fees; (ii) Seller will cooperate with Buyer as required to ensure Buyer's compliance with Trade Controls and provide information that is accurate and necessary to comply with Trade Controls or to receive any related benefits, credits or rights; (iii) transferable credits or benefits associated with the Services, including trade credits, export credits, or rights to the refund of duties, taxes or fees, belong to Buyer, unless otherwise prohibited by applicable law; (iv) Seller is not a Sanctioned Person (as defined herein); (v) none of the Services, goods, commodities, software or technology provided are sourced from Forced Labour, Sanctioned Persons, or Sanctioned Countries; (vi) Seller will comply with all regulatory and administrative requirements associated with the import or export of any services, goods, commodity, software or technology in connection with this Agreement; and (vii) neither Seller, nor its sub-suppliers or agents, will, at any time whatsoever or under any circumstances whatsoever, export, reexport or transfer any Confidential Information when to do so would be contrary to or in violation of any law, rule, order or regulation including laws, rules, orders and regulations concerning the export of data and information. “Trade Controls” shall mean, without limitation, economic sanctions, export or import controls or anti-boycott laws, rules, regulations or orders. “Sanctioned Countries” shall mean countries or territories, or the governments of which, that are subject to comprehensive or near-comprehensive Trade Controls. “Sanctioned Persons” include: (x) those individuals and entities designated on a United States, European Union, United Kingdom, United Nations or other applicable sanctions or export-restricted party list; (y) individuals or entities in a Sanctioned Country; and (z) entities owned fifty percent (50%) or more in the aggregate or controlled by one or more individuals or entities in (x).
20. Information: No information relative to the purchase or use of goods or services covered by a Purchase Order is to be published without first obtaining Buyer’s written consent.
21. Governing Law and Venue:
22. Notices: Any notice related to this Agreement shall only be effective if in writing, addressed to a party at its address specified by such party, and either (i) delivered in person, (ii) sent by facsimile with confirmation statement of transmission, (iii) delivered by registered mail or (iv) delivered by private, prepaid commercial courier.
23. Cancellation: No provisions listed above shall limit or affect the right of Buyer to terminate a Purchase Order. The following cancellation provisions will apply:
24. Buyer’s Premises. If the performance by Seller under a Purchase Order requires Seller to be on the premises of Buyer or Buyer’s agent, then Seller shall take all necessary precautions to prevent the occurrence of any accidents, injury, or damage to any person or property during Seller’s performance and Seller shall be responsible for and shall indemnify Buyer or Buyer’s agents against all losses, costs, claims, or expenses which may result in any way from any accident, injury, or damage to either person or property, or from the death of any person by reason of any act or omission on the part of Seller, its agents, employees or subcontractors, except to the extent that the accident, injury, damage, or death is due solely and directly to the negligence of Buyer or Buyer’s agents or if Buyer fails to comply with applicable health and safety laws. Seller shall at all times, maintain such public liability, property damage, and employers’ liability and workmen’s compensation insurance as Buyer or Buyer’s agents may require. Each such policy shall include an endorsement that the underwriters waive all rights of subrogation against Buyer, its employees and agents. Seller shall furnish, upon Buyer’s request, certificates evidencing such insurance.
25. Sustainability. Seller represents and warrants that it is compliant with State, European and International regulations and treaties related to unintentional release of plastic pellets. Upon request, Seller will provide evidence of the implementation of an “Operation Clean Sweep” program or equivalent. Seller utilizes a relevant metric that quantifies the amount of pellets lost over a period of time and has an action plan to eliminate any risk of unintentional release of plastic pellets.
Page Title: General Purchase Order Terms & Conditions
Page URL: https://www.ascendmaterials.com/suppliers/po-terms-conditions/
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Ascend Performance Materials SPRL
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