Blanket Purchase Order: Terms and Conditions
These terms and conditions are hereby incorporated into any Buyer issued purchase order that references these terms and conditions, and the first page of such purchase order and any similarly formatted following page that describes item numbers, item descriptions, quantity or pricing are referred to herein as the "front side" or "front" of this purchase order. This is a Blanket Order for the goods and supplies specified (collectively, "Products"), and effective for the period stated, on the front side of this Blanket Order. THE PRODUCT QUANTITIES SPECIFIED ON THE FRONT OF THIS BLANKET ORDER ARE ESTIMATES ONLY AND ARE NOT PURCHASED BY THE ISSUANCE OF THIS BLANKET ORDER. DELIVERY OR PERFORMANCE SHALL BE MADE ONLY ASAUTHORIZED BY RELEASE PURCHASE ORDERS ("RELEASE ORDERS") ISSUED BY BUYER HEREUNDER IN ACCORDANCE WITH SECTION 2. The terms and conditions set forth in this Blanket Order, including, without limitation, the pricing, quantity restrictions, effective period and any other terms set forth on the front page of this Blanket Order as well as Section 1(a) of any Release Order, shall govern Buyer’s and Seller’s rights and obligations with respect to any Release Order issued hereunder; provided that in the event the Release Order is also a Partial Toll or Full Toll Purchase Order the additional terms specifically specified in such Partial Toll or Full Toll Purchase Order as being applicable (the "Additional Terms") shall also apply and to the extent inconsistent herewith shall control. Failure to object to this Blanket Order within five (5) days of receipt of this Blanket Order or shipment of any Product under a Release Order issued hereunder (whether or not Seller has acknowledged this Blanket Order) to Buyer (or to such third party as Buyer has designated on the front of a Release Order), whichever comes first, shall constitute Seller’s acceptance of this Blanket Order in its entirety. ANY ACCEPTANCE OF THIS BLANKET ORDER IS LIMITED TO AND CONDITIONED UPON ACCEPTANCE OF THE EXPRESS TERMS AND CONDITIONS SET FORTH HEREIN (INCLUDING WITHOUT LIMITATION THOSE SET FORTH ON THE FRONT HEREOF) AND, UPON SELLER’S ACCEPTANCE AND BUYER’S ISSUANCE OF THE FIRST RELEASE ORDER HEREUNDER, THIS BLANKET ORDER BECOMES A BINDING CONTRACT SUBJECT TO ALL SUCH TERMS AND CONDITIONS. Absent a specific written agreement between Buyer and Seller or as otherwise provided herein, no revision, addition, alteration or deletion may be made to this Blanket Order, and any inconsistent, conflicting or additional terms or conditions on Seller’s acceptance, billing or any other forms are hereby objected to and rejected by Buyer and shall not be effective. If the parties have entered into a signed written agreement relating to the subject matter of this Blanket Order or any underlying Release Orders, and there is a conflict between the signed written agreement and this Blanket Order and/or corresponding Release Order(s), the terms and conditions of the signed written agreement shall control.
Any Products to be furnished under this Blanket Order shall be ordered by Buyer’s issuance of Release Orders referencing the number of this Blanket Order and specifying the quantity of Products ordered, the delivery schedule, the place of delivery, shipping instructions, and any other information reasonably required to fulfill such Release Order. Seller shall accept each Release Order issued hereunder, and furnish to Buyer, when and if ordered, the Products specified on the front side of this Blanket Order up to and including the quantity designated herein as the maximum quantity which may be ordered pursuant to this Blanket Order. Except for any limitations on quantity set forth herein, there is no limit on the number of Release Orders that may be issued under this Blanket Order. Any Release Order issued during the effective period of this Blanket Order, but not completed with that period, shall be completed by the Seller within the time specified in the Release Order.
3. Prices; Taxes.
Any Release Order issued under this Blanket Order shall not be filled at higher prices than specified herein. If a price is omitted, Products shall be billed at the price last quoted to Buyer, last paid by Buyer or at the prevailing market price, whichever is lower. Seller represents to Buyer that the price charged for the Products is the lowest price charged by Seller to buyers of a class similar to Buyer purchasing in quantities comparable to those specified in this Blanket Order ("Other Buyers"). Any general price reduction made by Seller or lower price given to Other Buyers with respect to the Products after the placement of any Release Order but prior to Buyer’s acceptance of such Products shall apply to such Products, and Seller shall promptly inform Buyer of such price reduction and grant Buyer a corresponding price reduction or account credit for each affected unit of the Products. Such lower price shall also apply to future Release Orders of such Products. Unless otherwise provided herein, all prices shown on this Blanket Order are deemed to include all taxes not expressly imposed by law on Buyer.
4. Invoices; Payment.
Seller shall issue one invoice per Release Order and such invoice shall include the Release Order number. Payment terms shall be as set forth on the front of this Blanket Order and shall run from, and applicable prompt payment discount shall be calculated from, the last to occur of (i) the scheduled delivery date; (ii) the date of actual delivery; or (iii) the date an original invoice containing the Release Order number is received by Buyer. Payment is made when Buyer’s check is mailed or when an electronic payment is initiated. Seller agrees to invoice Buyer no later than one-hundred twenty (120) days) after shipment of Products under a Release Order. Buyer shall not be obligated to make payment against invoices submitted after such period. Buyer may set off any claim or charge it may have against Seller against any amount payable under any Release Order issued under this Blanket Order.
5. Packaging; Shipping; Delivery.
All shipments will be packed in a manner that follows good commercial practice, is in compliance with all applicable transportation regulations, is adequate to ensure safe and undamaged arrival, assures the lowest transportation costs and meets carrier’s tariff requirements. Buyer is not responsible for any charge for packing, boxing, storage or cartage. Any expense incurred by Buyer as a result of improper preservation, packing, packaging or marking shall be reimbursed by Seller.
The terms, choice of carrier and routing of all shipments shall be as specified on the front of this Blanket Order or each Release Order issued under this Blanket Order, with the Release Order controlling, or as Buyer otherwise directs. Buyer may revise the shipping instructions as to any unshipped Products. All shipments of Products shall be accompanied by appropriate shipping documents, including without limitation a certificate of analysis ("CofA") in a form acceptable to Buyer certifying that the Products meet the required specifications for the Products.
c. Delivery Schedules.
Delivery schedules specified by Buyer on each Release Order shall be binding upon Seller. Time is of the essence with respect to the delivery of Products, and Seller shall use its best efforts, including overtime and premium shipment at Seller’s expense, to meet the scheduled delivery date, provided, however, that the failure of such efforts to achieve timely delivery of conforming Products shall not relieve Seller of liability for such failure. If, despite such efforts, Seller anticipates a delay or an actual delay occurs, Seller shall immediately notify Buyer, and upon receiving such a report, Buyer may, at its sole discretion, either approve a revised schedule or by written notice terminate the applicable Release Order and/or this Blanket Order in whole or in part, except for Products delivered in accordance with these terms and conditions prior to the date on which notice of termination is given to Seller. If, without authorization from Buyer, Seller ships Products that arrive more than five (5) days in advance of the scheduled delivery date, Buyer may either return such Products or store them at Seller’s risk and expense, and may inspect, accept or reject, and pay for such Products in accordance with the original delivery schedule.
d. Timely Delivery of Conforming Products in the Full Quantities Specified.
Seller shall furnish the exact quantities called for in each Release Order, and no variation will be accepted as compliant, except with Buyer’s prior written consent. Buyer may return excess shipments (or make other disposition at Seller’s direction) at Seller’s risk and expense or choose to accept the Products at Buyer’s sole discretion. If any shipment or delivery is made which is not in all respects in accordance with the applicable Release Order or this Blanket Order (including time of shipment or delivery or performance), Buyer may treat the applicable Release Order as repudiated by Seller. In such instance, Buyer reserves the right (without authorization from Seller and without limiting its rights to seek further recourse) to reject such delivery and return any shipment at Seller’s risk and expense, including, without limitation, incoming and outgoing freight, storage and handling charges where applicable, and/or cancel any outstanding delivery hereunder.
Buyer may, at any time prior to delivery of all Products ordered under a Release Order, by written change purchase order issued to Seller, modify such Release Order for any reason with respect to any one or more of the following: (i) drawings, designs, or specifications; (ii) method of shipping or packing; (iii) place of delivery; (iv) quantity of Products purchased; and (v) delivery schedule. Should any such change increase or decrease the cost of, or the time required for, performance of the Release Order, an equitable adjustment of the price, delivery schedule, or both may be requested in writing by Seller or by Buyer. No request by Seller for an adjustment shall be recognized unless it is submitted to Buyer, together with a statement of the amount of the requested adjustment and the reason therefor, within five (5) business days after Seller’s receipt of the notice of change. Changes shall not be binding upon Buyer unless evidenced by a written change purchase order issued by Buyer. Nothing contained in this Section 6 shall relieve Seller of the obligation to comply with the terms and conditions of the applicable Release Order and this Blanket Order as modified by any change requested by Buyer.
Buyer may cancel any outstanding Release Order, in whole or in part, and for any reason at any time prior to shipment of all of the Products ordered thereunder, without charge or penalty or any liability to Seller, upon written notice to Seller, and Seller shall, unless otherwise directed, immediately stop work, terminate all orders and subcontracts to the extent that they relate to the terminated work, and if applicable, follow Buyer’s directions as to disposal of work in progress and finished Products. In addition, Buyer may cancel any Release Orders in whole or in part at any time, and without charge or penalty or any liability to Seller: (i) if, as a result of changes in Laws (as defined in Section 11 below) including, without limitation, such Laws or guidelines set forth in Sections 11, 18, or 19 below, Buyer determines that it can no longer use a Product for such Product’s intended purpose, by written notice to Seller at any time; (ii) if any Products fails to meet Buyer’s specifications, by written notice to Seller at any time; and/or (iii) pursuant to Sections 5, 14 and/or 20 of this Blanket Order. Buyer may cancel this Blanket Order, in whole or in part, for any reason at any time, and without charge or penalty or any liability to Seller, upon written notice to Seller with respect to those Products that have not been shipped pursuant to Release Orders.
8. Inspection and Acceptance.
Buyer, or its authorized representative, shall have the right (but not the obligation or duty) to inspect and test any and/or all Products at the premises of Seller or any approved subcontractor engaged in the performance of any Release Order issued under this Blanket Order or any manufacturer of the Products, which must be approved by Buyer, if Seller is not the manufacturer of the Products ("Manufacturer"), or upon or after receipt, at Buyer’s election, and to accept such Products in writing or to reject for full credit or refund of the purchase price any Products that do not conform to Buyer’s specifications, the terms set forth herein or are otherwise defective. Buyer may alternatively require Seller to replace, correct or repair such rejected Products at Seller’s cost and expense. If Buyer or its authorized representative conducts such inspection on premises of Seller or any such subcontractor or any such Manufacturer, Seller shall provide or require its approved subcontractor or Manufacturer to provide, at Seller’s cost and expense, all facilities and assistance necessary or advisable for the performance of such inspection or testing. Buyer’s right to reject Products shall apply to any Products when found to be defective (which may be based on the results of Buyer’s inspection and tests) at any time and notwithstanding any prior payment. In addition, Seller shall pay Buyer for all costs incurred and damages sustained by Buyer as a result of such defective Products, including, without limitation, other material and labor costs, inspection, unpacking, repacking, freight, storage, shipping and handling charges. Buyer’s failure to specify any defect or nonconformance in rejecting any or all of the Products shall not prevent Buyer from relying on such defect or non-conformance to establish a failure of the Products to conform to the applicable specifications or to otherwise justify rejection hereunder. Payment for Products, or use of a portion of such Products for purposes of inspection or testing, shall not constitute acceptance thereof. Failure of Seller to object to a rejection of Products by Buyer within five (5) business days of such rejection shall constitute Seller’s acceptance of Buyer’s rejection and the reasons therefore. Nothing contained in this Blanket Order shall relieve Seller in any way from its obligation of independent testing, inspection and quality control, and neither such testing nor Buyer’s inspection shall limit Buyer’s rights or diminish any of Seller’s obligations hereunder.
9. Title; Insurance.
Title to, and risk of loss of, Products purchased under any Release Order issued under this Blanket Order shall pass in accordance with the shipping terms set forth on the front side of this Blanket Order. If shipment as specified in this Blanket Order is "F.O.B. Destination," then Seller shall retain title to the Products, pay shipping costs, and bear the risk of loss or damage until delivery is made to Buyer at the place designated on this Blanket Order. If shipment as specified in this Blanket Order is "F.O.B. Seller’s Plant," then Seller shall bear the cost of delivery of the Products to a carrier of the type specified by Buyer. In addition, Seller shall bear all risk of loss as to rejected Products two (2) days after the notice of rejection has been provided by Buyer to Seller. Seller shall not insure the Products for Buyer’s account unless the terms of this Blanket Order so require. Seller shall maintain, and shall cause its approved subcontractors, brokers and distributors to maintain, insurance in accordance with Buyer’s then-current insurance requirements, which insurance shall in no event be less than what is usual and customary in Seller’s industry. Before the initial delivery of Products under the first Release Order issued hereunder, and thereafter no less frequently than annually, Seller shall provide Buyer with certificates of insurance evidencing such insurance, which certificates shall name Buyer and its affiliates as additional insureds on such policies. All such insurance shall be primary to any insurance carried by Buyer.
10. Manufacturing Processes & Facilities.
Without providing Buyer with at least 8 weeks prior written notice and obtaining the Buyer's prior written approval, Seller shall not, and shall not permit any Manufacturer to, make any changes to: (i) the manufacturing process of the Products, including without limitation changing the ingredients used to produce the Products; (ii) the packaging of the Products; (iii) the location of the manufacturing and packaging facilities for the Products; or (iv) the Products that would require any changes to any of the Product Documents (as such term is defined below) in order for any of such Product Documents to continue to remain accurate and complete. For purposes hereof, the term "Product Documents" means Buyer’s specifications for the Products and all of the following documents provided to Buyer by Seller or Manufacturer or their respective representatives prior to the time of the first order by Buyer of the Products or with 8 weeks prior notice and Buyer’s written approval: the manufacturing flowcharts for the Products, the manufacturing specifications for the Products, the ingredient specifications for the Products, and any Ingredient Information Worksheet, composition statements or lists, allergen statements, non-GMO statements, solvent statements, country of origin statements, safety data sheets, Bovine Spongiform Encephalopathy statements, and any sub-component ingredient statements. If Seller is not the manufacturer of the Products, Seller will not change the Manufacturer of the Products without obtaining the prior written approval of Buyer. Seller agrees to abide by, and to cause any Manufacturer to abide by, any product and process change procedures and process change forms that Buyer may adopt. Buyer shall have the right (but not the obligation or duty) to inspect the manufacturing operations and Product recall readiness of Seller or any approved subcontractor or any Manufacturer during normal business hours and without advanced notice. Seller shall provide to Buyer upon request a copy of its and its approved subcontractors’ or manufacturers’ product recall manual and permit Buyer representatives to participate in any recall training conducted by such entities. Seller shall obtain all rights necessary from its approved subcontractors and Manufacturer to be able to fulfill its obligations under this Section.
Seller and its employees, agents, brokers, contractors, subcontractors and representatives (collectively, "Seller Representatives") shall comply with Buyer’s policies and procedures when they are at Buyer’s facilities. Seller represents, warrants and covenants to Buyer, its affiliates, parents, successors and assigns, and all distributors, sub-distributors, resellers, customers, dealers and users of Products ("Buyer Parties") that all Products provided pursuant to Release Orders issued hereunder: (i) have been manufactured, tested, produced, performed, packaged, labeled, invoiced, transported, sold, delivered and, if required, certified or registered in accordance with, and on the date of delivery will not be in violation of, and in all other respects shall comply with (a) Buyer’s manufacturing and ingredient specifications, and (b) all applicable statutes, laws, ordinances, rules, regulations, standards, guidelines, judgments, orders, decrees, or rules of common law, or other governmental restriction or any similar form of decision of or determination by, any national, state, or local government, whether now or hereafter in effect (collectively, "Laws"), including without limitation Laws governing product safety, labor practices, labeling, packaging and the use of pesticides, hazardous substances and other chemicals, and California Proposition 65 and related statutes and regulations; (ii) shall conform to any samples submitted by Seller to Buyer; (iii) shall not contain any ingredient not listed in Buyer’s specifications or provided to Buyer in writing in the composition worksheets or the vendor documents that are the equivalent thereof; (iv) shall be on the date of delivery free from defects, of good quality and workmanship, merchantable and, if the Products are to be sold as dietary supplements or foods or if they will be used to manufacture dietary supplements or foods, safe and fit for human consumption, and/or safe and fit for any other intended or reasonably foreseeable purpose, and the use of such Products for such purposes will not violate any applicable Law; (v) shall not be on the date of delivery (a) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act of 1938, as amended, and the rules and regulations thereunder (collectively the "Act"), or (b) articles which may not, under the provisions of §§ 404, 505, 512 or any other provisions of the Act, be introduced into interstate commerce; and (vi) do not and shall not infringe on any patents, trademarks, copyrights, service mark, trade secrets, intellectual property rights or other proprietary rights held by third parties. Seller also represents, warrants and covenants to the Buyer Parties that Seller has the necessary right, title, and interest to provide the Products, and such Products will be free and clear of liens and encumbrances. If any Products are derived from or contain gelatin, Seller further represents and warrants to the Buyer Parties that such Products have been produced either: (i) in accordance with the guidelines set forth in the Food and Drug Administration’s Guidance for Industry bulletin entitled "The Sourcing and Processing of Gelatin to Reduce the Potential Risk Posed by Bovine Spongiform Encephalopathy ("BSE") in FDA-Regulated Products for Human Use" dated September 1997, as the same may be amended or updated from time to time, and any successor bulletins thereto; or (ii) using an alternative approach, described in writing to Buyer prior to the date of this Blanket Order or any Release Order under which such Products are first provided, which satisfies the requirements of applicable statutes and regulations. Seller further warrants that the Product Documents (defined above), certifications, certificates of analysis, worksheets, statements, flowcharts, specification sheets, corporate documents, or any other documents provided by Seller with respect to the Products are true, correct, complete, accurate, and not misleading. The foregoing representation, warranties and covenants shall be in addition to any implied warranties and any representations, warranties or covenants of a broader scope given to Buyer by Seller other than hereunder. Seller’s obligations under the foregoing representations, warranties or covenants shall not be affected by Buyer’s approval of any designs or materials furnished by Seller, or Buyer’s inspection, test, acceptance or use of Products subject hereto. In addition to any other rights or remedies hereunder, if any Products do not conform to the foregoing representations, warranties or covenants, Buyer may, at its option, return for a full credit or require Seller to replace, correct or repair, promptly upon request by Buyer and without expense to Buyer, any such non-conforming Products. If Seller fails to promptly so replace, correct or repair such Products after Buyer’s request, Buyer shall have the right to replace, correct or repair such Products at Seller’s cost and expense.
Seller shall indemnify, hold harmless and, at each Buyer Party’s option, defend each of Buyer Parties and their officers, directors, agents, employees and contractors from and against any and all demands, claims, actions, causes of action, losses, damages, liabilities, liens, judgments, costs and expenses of every type and nature (including, without limitation, attorneys’ fees and expert witness fees actually incurred or to be incurred) (collectively, "Claims"), foreseen or unforeseen, which actually or allegedly arise out of or in any manner relate to or result from: (i) any actual or alleged act or omission that constitutes or might constitute a breach by Seller of any representation, warranty or covenant contained herein; (ii) any injury to, or illness or death of, any person or animal, or property damage or economic loss, actually or allegedly resulting from or arising out of the handling, purchase, consumption or use of, or otherwise relating to, any Products, or arising out of any goods produced using the Products (to the extent arising as a result of the inclusion of the Products in such goods) or arising out of the performance of this Blanket Order or any Release Order issued hereunder; (iii) any recall or withdrawal of any Products or any goods produced using the Products, whether voluntary or involuntary, actually or allegedly arising out of or resulting from any Products or any act or omission by any Seller Representatives; (iv) any assertion that any Product is adulterated, misbranded, defective, or unsafe or that any goods produced using the Products is adulterated, misbranded, defective, or unsafe arising out of or resulting from any Products; (v) any actual or alleged infringement of any patents, trademarks, copyrights, service marks, trade secrets, intellectual property rights or other proprietary rights held by third parties by the Products or the sale or use of the Products; (vi) any actual or alleged violation of any Laws set forth in Sections 11, 18 or 19 of this Blanket Order; or (vii) any actual or alleged negligence, errors, omissions, or misconduct by any Seller Representatives.
13. Defense of Claim.
Seller shall pay for all costs, expenses and charges resulting from the defense of any Claim. If requested by a Buyer Party, Seller shall assume and be responsible for the defense of all Claims with counsel reasonably satisfactory to such Buyer Party; provided that such Buyer Party may, at its option, participate in the defense of any such Claims with its own counsel if it so chooses. Seller shall keep such Buyer Party fully informed at all times with respect to any material developments in all Claims, and, without limiting the foregoing, shall provide such Buyer Party with written status reports on such matters at least on a quarterly basis. Seller shall not settle any Claim without such Buyer Party’s written consent, which consent shall not be unreasonably withheld.
14. Force Majeure.
Neither party shall be liable for any delay or failure of performance due solely to war, acts of terrorism, Acts of God, strikes, fires, earthquakes, or other similar causes beyond its reasonable control and without its fault or negligence, provided that the party subject to such delay shall have given written notice to the other of any such cause for delay or anticipated delay promptly following the commencement thereof. If Seller should be unable, due to such a cause, to meet all of its delivery or performance commitments for Products ordered pursuant to Release Orders as they become due, Seller shall not discriminate against Buyer or in favor of any other customer in making deliveries or performance commitments for such Products. Seller shall use its best efforts to make deliveries or perform as expeditiously as possible taking such cause of delay into account. However, if Buyer believes that the delay or anticipated delay in Seller’s deliveries or performance may impair its ability to meet its production or delivery schedule or may otherwise interfere with Buyer’s operations, Buyer may at its option, and without liability to Seller, cancel outstanding deliveries of Products in whole or in part.
15. Materials & Equipment.
Unless otherwise specified in a Release Order issued hereunder, Seller at its risk and cost, shall supply all material, equipment, tools and facilities required to satisfy Seller’s obligations under all Release Orders issued hereunder. Any material, equipment, tools, designs, blueprints, specifications, parts, intellectual property or other property furnished by Buyer or specifically paid for by Buyer to enable Seller to deliver under any Release Order shall be Buyer’s property. Any such property: (i) shall be used only to enable Seller to deliver under the applicable Release Order; (ii) shall not be used by Seller in the production of materials for any third party or for itself without Buyer’s prior written authorization; (iii) may, on demand, be removed by Buyer without charge; and (iv) unless otherwise specified by Buyer, shall be returned to Buyer at Seller’s risk and expense at the earlier of completion or cancellation of the applicable Release Order. Seller shall use such property at its own risk, insure such property, and shall be responsible for all loss or damage to the same while in Seller’s custody. Seller acknowledges that all such property supplied by Buyer to Seller to be used in producing Products have been received in good condition, and Seller shall, at its cost and expense, store and maintain all such property in good condition and repair. Seller shall pay Buyer for all such property lost, damaged or destroyed while not in Buyer’s immediate custody. If Seller requires additional property from Buyer to complete Seller’s satisfaction of its obligations under any Release Order, Seller shall purchase the same from Buyer at such property’s then-current prices. At Buyer’s direction, Seller, at its own expense, will separately account for all property supplied by Buyer, maintain current and accurate inventory records thereof and take accurate physical inventory thereof as required by Buyer. BUYER MAKES NO WARRANTIES OF ANY NATURE WITH RESPECT TO ANY PROPERTY OR SPECIFICATIONS IT MAY FURNISH AND EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE FOR THE SAME.
IN NO EVENT SHALL BUYER’S LIABILITY FOR BREACH OR ALLEGED BREACH OF THIS BLANKET ORDER OR ANY RELEASE ORDER ISSUED HEREUNDER EXCEED THE TOTAL EXTENDED PRICE OR PRICES SHOWN ON THE RELEASE ORDER TO WHICH THE BREACH PERTAINS, NOR SHALL BUYER BE LIABLE TO SELLER FOR ANY INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH BREACH OR ALLEGED BREACH. If Seller breaches this Blanket Order or any Release Order issued hereunder, Seller shall be liable for all resulting damages, including any direct, indirect, punitive, special or consequential damages. Seller’s liability may exceed the total extended price or prices shown on this Blanket Order and any Release Order issued hereunder, and Buyer and Seller each acknowledge that this liability provision allocates risks between the parties, as authorized by the Uniform Commercial Code and other applicable laws.
Seller shall comply with the terms and conditions of the latest version of, if any, the Nondisclosure Agreement by and between Buyer and Seller (“NDA”). Should there be any inconsistencies between this Section 17 and the NDA, the terms and conditions of the NDA shall govern with respect to the subject matter hereof this section. The terms and existence of this Blanket Order and all Release Orders issued hereunder, everything supplied in connection with it by Buyer, and related information and data shall be confidential information of Buyer and shall be held in confidence by Seller. Seller shall not publicly announce or disclose this Blanket Order, or any Release Order or its contents, without Buyer’s prior written consent. Seller shall not use Buyer’s name in any way, including without limitation, a general or sample listing of Seller’s customers, without Buyer’s prior written consent. Any violation of this Section 17 shall be deemed a default hereunder.
18. Environmental Compliance.
Seller shall ensure that performance of Seller’s obligations under this Blanket Order and any Release Order issued hereunder complies will all applicable Laws relating to the indoor or outdoor environment, natural resources, or to the health, safety or welfare of natural persons affected by the environment, or to the release or disposal or threatened release or disposal of Hazardous Materials or Substances (as defined herein) into the indoor or outdoor environment including, without limitation, ambient air, soil, surface water, groundwater, sea water, wetlands, land or subsurface strata or otherwise relating to the use of Hazardous Materials or Substances or otherwise applicable to Hazardous Materials or Substances, whether now or hereafter in effect (collectively, "Environmental Laws"). A "Hazardous Material or Substance" shall mean any of the following: any chemicals, chemical mixtures, wastes or materials in solid, liquid or gaseous form, including but not limited to those that are now or hereafter become (i) defined or listed as, or included in the definition of, "hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants," "pollutants" or terms of similar import under any Environmental Law, or (ii) prohibited, limited or regulated under any Environmental Law. Seller shall obtain and maintain all licenses, authorizations, certifications, and approvals required under any applicable Environmental Law. Seller shall not permit the unauthorized release or disposal of any Hazardous Material or Substance into the environment and, in the event of any such unauthorized release or disposal, shall, at its own expense and liability, promptly perform any investigation, study, sampling, testing, cleanup, removal, and remedial or other action necessary to remove and clean up any such Hazardous Material or Substance in accordance with the requirements of all applicable Environmental Laws.
19. Compliance with Other Laws.
Any provision which is required to be a part of this Blanket Order or any Release Order by virtue of any Law, including, without limitation, The Equal Employment Opportunity Clause and the Affirmative Action Clauses set forth in Executive Order #11246, as amended, the regulations at 41 CFR Parts 60-1 through 60-50, 38 U.S.C. §§ 4211-4212 (Vietnam Era Veterans Readjustment Assistance Act), Section 503 of the Rehabilitation Act of 1973, and the regulations at 41 CFR Parts 60-250 and 60-741, as each may be amended, is incorporated herein by specific reference. Seller represents and covenants that Products to be furnished pursuant to this Blanket Order or any Release Order were or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all applicable employment Laws. Seller agrees to submit all reports, certifications, and other documents required pursuant compliance with the terms of this Section 19.
Seller shall be in default of this Blanket Order and/or any applicable Release Order if Seller: (i) fails to comply with any of the terms and conditions of, or breaches any representation, warranty or covenant provided for in, this Blanket Order or Release Order; (ii) Seller ceases to conduct its operations in the normal course of business, becomes insolvent, or makes an assignment for the benefit of its creditors; or (iii) a bankruptcy petition is filed by or with respect to Seller. If Seller defaults, Buyer may, in its sole discretion upon written notice to Seller: (a) withhold from any amount due Seller under a Release Order such amount as is required, in Buyer’s reasonable judgment, to protect Buyer from loss or damage; (b) immediately terminate this Blanket Order and/or any applicable Release Order in whole or in part; and (c) exercise any other right or remedy provided for herein or by law. BUYER SHALL HAVE NO LIABILITY TO SELLER AS A RESULT OF TERMINATION FOR DEFAULT.
This Blanket Order, any Release Orders issued hereunder, any other document referred to herein, any signed written agreement between the parties relating to this subject matter hereof, any signed nondisclosure agreement between the parties, and any other warranties provided by Seller to Buyer constitute the entire agreement between the parties with respect to the subject matter of this Blanket Order and any Release Orders issued hereunder and supersedes all previous negotiations, commitments, purchase orders, and writings with respect thereto. Except for written change purchase orders issued by Buyer, this Blanket Order or any Release Order may only be modified by a writing signed by a duly authorized representative of both parties. No part of this Blanket Order or any Release Order or any of the rights or obligations hereunder may be assigned or subcontracted by Seller without the prior written approval of Buyer. All rights granted to Buyer Parties hereunder are in addition to and not in lieu of all other rights and remedies available to Buyer whether at law or in equity. Buyer’s failure or delay in insisting on any right shall not operate as a waiver of such right or any other right. This Blanket Order and any Release Orders issued hereunder shall be governed by the laws of the State of California, without regard to conflict of law principles. Seller hereby agrees that any and all disputes arising under this Blanket Order and any Release Orders issued hereunder shall be subject to adjudication only in the state courts of Los Angeles County, California, or the United States District Courts for the Central District of California, and Seller hereby consents to the exclusive jurisdiction of such courts. If any action is commenced in connection with this Blanket Order or any Release Order, the prevailing party in such action shall be entitled to recover from the other party its costs of suit incurred including without limitation, its attorneys’ fees and expert witness fees. Should any of the provisions of this Blanket Order or any Release Order be declared by a court of competent jurisdiction to be invalid, void or otherwise unenforceable, such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Blanket Order, and the remainder of this Blanket Order shall remain in full force and effect.
22. Compliance with Supplier Code of Conduct; Audits.
Seller agrees to comply with Buyer’s parent corporation’s Otsuka Global Code of Business Ethics posted at https://www.otsuka.com/en/company/conduct/ (the "Code of Business Ethics"). Buyer and Buyer’s parent corporation (the “Otsuka Group”) reserve the right to modify the Code of Business Ethics and Seller should periodically (and no less frequently than semi-annually) review the Code of Business Ethics to ensure compliance with the then current Code of Business Ethics. Seller agrees from time to time as requested by Buyer to certify that it is in compliance with the Code of Business Ethics. Seller further agrees (i) to monitor and implement internal controls to ensure compliance with the above reference, and to promptly disclose any failure of compliance to Buyer; (ii) to disclose the identity, address and ownership of each and every facility, including each subcontractor facility, (collectively, the "Facilities") supplying materials, goods, or services to Buyer; (iii) to be subject to periodic on-site audits by Buyer’s in-house auditors and/or independent third party auditors designated by Buyer (collectively, "Buyer Audits") to verify compliance with the Code of Business Ethics and with Seller’s warranties under this Blanket Order, which audits may be reasonably arranged by Buyer on prior written notice to Seller; (iv) to cooperate and ensure that all Facilities cooperate with Buyer Audits and make their facilities, records, employees and contract workers available to auditors at any time; (v) not to discriminate or retaliate against workers for their comments to auditors; (vi) to promptly implement and submit to Buyer, for its review and approval, a plan for corrective action if Seller fails to comply with any aspect of the Code of Business Ethics; (vii) to maintain records of assessments or Buyer Audits at its own Facilities and require its subcontractors to provide corresponding records of any corrective actions undertaken in response to such assessments or Buyer Audits, and (viii) to make such records available for review and inspection by Buyer or its duly appointed agent(s) upon request.