Standard Purchasing Terms and Conditions

Standard Purchasing Terms and Conditions

1. Application

1.1
The Buyer hereby orders, and the supplier, by accepting the purchase order, agrees that it will supply The Goods specified subject to these terms and conditions which shall govern the Contract to the exclusion of any other terms and conditions. Any reference overleaf to the supplier’s quotation, specification, price list or like document shall be solely for the purpose of describing The Goods to be supplied and no terms and conditions endorsed upon, delivered with or referred to in such apply to the Contract.

2. Contract Provisions

The headings in these Conditions are for convenience only and shall not affect their interpretation.

2.1
“The Buyer” means the entity issuing The Order, and any affiliates, subsidiaries, successors or assigns thereof. “The Seller” means the person or company to whom The Order is addressed. “Materials” means all the products and/or services to be supplied by The Seller under The Order. “The Order” means the Purchase Order issued by The Buyer for the supply of Materials, which may be an oral communication or a written or electronic document.

2.2
These terms and conditions, together with the Purchase Order, constitute an offer by The Buyer to purchase The Materials from The Seller in accordance with the terms and conditions described herein. The Seller, by accepting the purchase order, agrees that it will supply The Goods specified overleaf and, subject to these conditions, shall govern the contract to the exclusion of any other terms and conditions. This offer is not an acceptance or a confirmation of any previous offer or proposal from The Seller, and this offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal from The Seller. Acceptance of any shipment of The Materials shall not be construed as an acceptance of any such previous offer or proposal or an acceptance of any different or additional terms proposed by The Seller.

2.3
This offer shall become an “Agreement” upon acceptance by The Seller. The Seller shall be deemed to have accepted this offer by commencement of performance called for in The Order, by delivery of The Materials to The Buyer, by written acceptance or confirmation of this Agreement, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. The Buyer hereby expressly objects to and rejects any such additional or different provisions, and none of such provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by The Buyer. Any reference overleaf to the supplier’s quotation, specification, price list or like document shall be solely for the purpose of describing The Goods to be supplied and no terms and conditions endorsed upon, delivered with or referred to in such apply to the Contract.

3. Sale of Materials

3.1
3.1 The Seller agrees to sell, transfer and deliver The Materials to The Buyer for the purchase price set forth in The Order, subject to all of the covenants, terms and conditions hereof.

3.2
3.2 The Buyer agrees to purchase The Materials, subject to all of the covenants, terms and conditions hereof, and to pay The Seller the purchase price set forth in The Order. Typographical and other clerical errors in The Order are subject to correction. The Buyer reserves the right at any time to modify The Order upon notice to The Seller. Upon such notice, The Buyer and The Seller shall negotiate an equitable adjustment in price and/or time of performance. The Buyer shall have the right to stop all or part of the work under The Order or cancel any future delivery of any Materials upon notice to The Seller.

3.3
The Seller agrees to obtain from The Buyer a purchase order number for any and all purchase orders of goods and/or services. The Seller further agrees it will clearly reference the purchase order number on the applicable invoice(s). The Supplier shall accept The Order placed by The Buyer, and a binding contract for the supply of The Goods subject to these conditions, shall exist by whichever is the earlier of; the Supplier’s acceptance of The Order, in writing or orally, subject to these conditions; or by the delivery of Goods.

3.4
The Seller acknowledges that any invoice submitted to The Buyer that does not clearly reference The Buyer’s corresponding purchase order number may be considered invalid by The Buyer and may result in delayed payment.

3.5
Any typographical clerical or other accidental error or omission in The Order placed by The Buyer or in any drawing’s specifications, instructions, tools or other material supplied by The Buyer, shall be subject to correction without any liability on the part of The Buyer. No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of The Buyer and The Seller.

4. Specification

4.1
The quantity, quality and description of The Goods shall, as provided in these Conditions, be as specified in The Order and/or in any applicable Specification supplied by The Buyer to The Seller or agreed in writing by The Buyer.

4.2
Any Specification supplied by The Buyer to The Seller, or specifically produced by The Seller for The Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of The Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of The Seller, or as required for the purpose of the Contract. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of The Seller, or as required for the purpose of the Contract.

4.3
The Goods shall be marked in accordance with The Buyer’s instructions and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

4.4
The Seller shall not unreasonably refuse to take any steps necessary to comply with any request by The Buyer to inspect or test The Goods during manufacture, processing or storage at the premises of The Seller or any third party prior to despatch, and to provide The Buyer with any facilities reasonably required by The Buyer for inspection or testing. If as a result of inspection or testing The Buyer is not satisfied that The Goods will comply in all respects with the Contract, and The Buyer so informs The Seller within seven days of inspection or testing, The Seller shall take such steps as are necessary to ensure compliance.

4.5
The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of The Goods.

5. Purchase Price and Terms of Payment

5.1
PRICE

5.2
The Price of The Goods shall be as stated in The Order and, unless otherwise so stated, shall be exclusive of any applicable value added tax (which shall be payable by The Buyer subject to receipt of a VAT invoices).

5.3
The purchase price for The Materials shall include all taxes, customs duties, customs fees or other governmental charges due with respect to The Materials delivery to the delivery address and any duties, imposts or levies other than value added tax.

5.4
The Buyer shall, however, pay for any taxes that it is statutorily required to pay. The Seller shall provide The Buyer with documentation satisfactory to The Buyer that establishes The Buyer’s statutory liability to pay such taxes. If The Seller fails to provide such documentation, The Buyer shall not be obligated to pay any such taxes.

5.5
The Seller shall be responsible for all shipping and insurance costs, including without limitation, packing, crating, cartage and shipping costs.

5.6
No increase in the Price may be made (whether because of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent or The Buyer in writing.

5.7
The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by The Seller, whether or not shown on its own terms and conditions of sale.

5.8
PAYMENT

5.9
Unless otherwise stated in The Order, The Buyer shall pay the price of The Goods within 60 days after the end of the month of receipt by The Buyer of a proper invoice or, if later, after acceptance of The Goods in question by The Buyer, but time for payment shall not be of the essence of the contract.

5.10
Each invoice shall quote The Order number or will be rejected by The Buyer and payment refused until 60 days after month end of amended invoice states correct order number.

5.11
Materials shipped against this Agreement shall be invoiced at the price set forth in The Order. Unless otherwise specified on The Order, payment of the purchase price shall be due 60 days after the later of The Buyer’s receipt of The Seller’s correct invoice for such shipment or the date on which The Materials are received by The Buyer. The Seller agrees that it will take no adverse action against The Buyer for any invoices not paid resulting from The Seller’s failure to obtain or clearly reference purchase order numbers on the applicable invoices or accurately invoice The Buyer.

5.12
The Buyer shall be entitled to set off against the Price any sums owed to The Buyer by The Seller.

5.13
The Seller must ensure all The Order is stated on all documentation.

5.13.1
Failure to do so may result in a delay or non-payment.

5.14
The Seller must send a hard copy of their invoice to Land and Water, Weston Yard, Albury, Guildford, Surrey, GU5 9AF.

5.15
The Seller must invoice The Buyer within three months of the supply.

5.16
The Buyer may refuse payment if invoices are received after three months of supply.

6. Shipment, Delivery and Acceptance

6.1
The Goods shall be delivered to the delivery address on the date or within the period stated in The Order, in either case during The Buyer’s usual business hours.

6.2
The Seller shall follow any shipping instructions provided by The Buyer and shall properly and carefully package The Materials for shipment. Any loss or damage, whenever occurring, which results from The Seller’s improper packaging or crating shall be borne by The Seller. Notwithstanding anything in the foregoing to the contrary, title to and risk of loss of The Materials shall pass to The Buyer only upon receipt of the same by The Buyer, and any rightful rejection or revocation of any Materials by The Buyer shall immediately shift the risk of loss of such Materials, wherever located, to The Seller.

6.3
All items shipped shall be properly identified with The Buyer’s purchase order number and any purchase order item number or other identification number shown. The Seller accepts full responsibility for the completeness and accuracy of all transport and customs documentation (“Shipping Documents”) provided to The Buyer. The Seller accepts any liabilities resulting from incomplete or inaccurate data on Shipping Documents or failure to comply with any import or export requirements.

6.4
Where it is agreed in writing that the date of delivery of The Goods is to be specified by The Seller after the placing of The Order, The Seller shall give The Buyer reasonable notice in writing of the specified date.

6.5
The time of delivery of The Goods is of the essence of the Contract.

6.6
If The Goods are to be delivered by instalments, the Contract will be treated as a single contract and not severable.

6.7
The Buyer shall have a reasonable opportunity to inspect The Materials after delivery to The Buyer’s premises.

6.8
The Buyer shall not be deemed to have accepted The Goods until it has had 5 working days to inspect them following delivery or collection as the case may be. The Buyer shall also have the right to reject The Goods as though they had not been accepted for 5 days after any latent defect in The Goods has become apparent.

6.9
The Buyer shall not be deemed to have accepted any such Materials until the expiration of such time for inspection following delivery. The parties acknowledge and understand that The Buyer may inspect any commercial lot of The Materials consisting of numerous units of the same product by inspecting only a reasonable sampling of such units and that The Buyer may revoke acceptance of any other units of such commercial lot which The Buyer at a later time discovers to be defective.

6.10
The Seller shall supply The Buyer in good time with any instructions or other information to enable The Buyer to accept delivery of The Goods.

6.11
The Buyer shall not be obliged to return to The Seller any packaging or packing materials for The Goods, whether or not any Goods are accepted by The Buyer.

6.12
The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the contract and shall not be deemed to have accepted any Goods until The Buyer has had a reasonable time to inspect them following delivery.

6.13
Upon rejection or revocation of acceptance of any Materials, The Seller promptly shall replace or correct, at The Buyer’s option, any unsatisfactory units at The Seller’s expense, including all shipping costs. The Buyer’s failure to inspect or reject Materials, or payment for Materials, shall not relieve The Seller of any of its obligations hereunder or constitute a waiver of any of The Buyer’s rights hereunder.

7. Quality and Warranty

7.1
The Seller hereby warrants to The Buyer that, in addition to any and all express and implied warranties; (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of The Seller’s industry; (ii) shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose; (iii) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements referred to in The Order and provided by The Seller; (iv) when shipped shall be free from all liens, security interests and encumbrances of any type whatsoever; and (v) shall be manufactured, produced, labelled, furnished and delivered to The Buyer in full and complete compliance with all applicable laws and regulations, both at the time of delivery and for a reasonable period of time thereafter.

7.2
The Goods shall of the best available design, quality, material and workmanship and conform in all respects with The Order and Specification supplied or advised by The Buyer to The Seller.

7.3
The Goods will correspond with any relevant specification or sample and will comply with all statutory requirements and regulations relating to the sale of The Goods.

7.4
The Seller warrants that (subject to the other provisions of these conditions) upon delivery and for a period of 12 months from the date of delivery, The Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979; be reasonably fit for purpose; and be reasonably fit for any particular purpose for which The Goods are being bought if The Buyer had made known that purpose to The Seller in writing and The Seller has confirmed in writing that it is reasonable for The Buyer to rely on the skill and judgment of The Seller.

7.5
The property in The Goods shall pass to The Buyer upon delivery, unless payment for The Goods has been agreed to be made prior to delivery, when it shall pass to The Buyer once payment has been made and The Goods have been appropriated to the Contract.

7.6
The Seller shall not be liable for a breach of any of the warranties in condition unless; The Buyer gives written notice of the defect to The Seller, and, if the defect is as a result of damage in transit to the carrier, within 5 days of the time when The Buyer discovers the defect.

7.7
After receiving notice of defected Goods, and The Buyer (if asked to do so by The Seller) returns such Goods to The Seller’s place of business at The Seller’s cost for the examination to take place there, The Seller will be given a reasonable opportunity to replace The Goods, if The Buyer is still able to utilise The Goods and accepts the replacement goods.

7.8
If any of The Goods do not conform with any of the warranties specified in these Terms and Conditions, The Seller may opt to repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if The Seller so requests, The Buyer shall, at The Seller’s expense, return The Goods or the part of such Goods which is defective to The Seller.

7.9
The Seller shall give The Buyer reasonable advance written notice of any production change related to The Materials, including but not limited to any change in the manufacturing process, formulation, raw materials or production location. For any change that could affect performance of The Materials, The Seller shall complete any reasonable qualification processes of The Buyer and address The Buyer’s concerns about the change.

8. Sustainability

8.1
The Seller must consider the impact of environmental, economic and social factors along with price and quality, and at all times adhere to the fundamentals of ethical behaviour when sourcing materials and demonstrate integrity at all times.

8.2
All timber supplied to The Buyer must be FSC certified, unless agreed otherwise by The Buyer.

8.3
The Seller must attempt to limit the negative impact the transportation of goods and materials may have on the environment or such entities and does not unnecessarily increase the costs to The Buyer.

9. Compliance with Law and Regulation

9.1
The Seller shall comply with The Buyer’s policies that are notified to it by The Seller from time to time.

9.2
The Seller agrees to cooperate with any audit conducted by The Buyer or at The Buyer’s direction to confirm that The Materials are being generated without reliance on fraud, corruption, child labour, Section 54 of the Modern Slavery Act 2015, or any form of labour or human trafficking. Furthermore, as requested by The Buyer, The Seller agrees to execute and provide all information, documents and certifications reasonably required by The Buyer pursuant and use due diligence protocols, standards and procedures in its supply chain as are necessary to comply with its obligations herein.

9.3
Any alleged or suspected violation of The Buyer’s policies by The Seller or its personnel in the performance of this Agreement shall be promptly reported to The Buyer. The Seller shall permit The Buyer and any of its affiliates to investigate the matter, co-operate with any such investigation and take whatever corrective action The Buyer deems to be appropriate with respect to any such violation by The Seller or its personnel. Any breach of the policies by The Seller shall constitute a material breach of the Agreement and shall entitle The Buyer to terminate this Agreement and any other agreement between the parties, with immediate effect without liability.

9.4
The Seller represents, warrants and undertakes to The Buyer that: (i) in carrying out its responsibilities under this Agreement, it shall at all times comply with all applicable local and international laws.

9.4.1
In particular, neither it nor any of its officers, employees, directors or agents shall, directly or indirectly offer, promise, pay or give, or authorise any offer, promise, payment or gift of, money or anything else of value to any person, including any public official or other relevant person, either as an improper inducement to make, or as an improper reward for making, any decision favourable to the interests of The Buyer or The Seller.

9.5
Notwithstanding any other provision of this Agreement, if The Buyer becomes aware of what it determines in good faith to be a breach of the above representations and warranties, The Buyer is entitled to terminate this Agreement, and any other agreement between the parties, with immediate effect. In the event of such termination, The Buyer shall have no liability to The Seller under this Agreement for any fees, reimbursements.

10. Default

10.1
10.1 The Seller shall be deemed to be in default hereunder if it violates any of the terms hereof or fails timely to perform any of its covenants, duties or obligations hereunder, or if it performs or fails to perform any other act, whether pursuant to this Agreement or otherwise, which gives The Buyer reasonable grounds to feel insecure with respect to The Seller’s future performance hereunder.

10.2
10.2 Upon default by The Seller hereunder, The Buyer may exercise any or all of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or under applicable law: (i) Reject or revoke acceptance of any or all of The Materials, whether or not such Materials are defective and whether or not the condition of delivery thereof otherwise relates to, pertains to, concerns or gives rise to such event of default; and/or (ii) Terminate this Agreement without any obligation whatsoever with respect to Materials not yet delivered to The Buyer at the time of such termination. The Buyer’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or at any other time.

11. Risk, Property and Indemnification

11.1
The Seller agrees to indemnify The Buyer in full, from and against, any and all liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees, incurred or suffered by The Buyer as a result of or in connection with The Seller’s breach of any of its obligations hereunder.

11.2
Risk of damage to or loss of The Goods shall pass to The Buyer upon delivery to The Buyer in accordance with the Contract.

11.3
The property in The Goods shall pass to The Buyer upon delivery, unless payment for The Goods has been agreed to be made prior to delivery, when it shall pass to The Buyer once payment has been made and The Goods have been appropriated to the Contract.

11.4
The Seller agrees to indemnify The Buyer in full in respect of any damages, losses or expenses which The Buyer may suffer or incur (including reasonable attorneys’ fees) arising out of, relating to or concerning any claim, action or allegation that any of The Materials (or the use of same in an intended manner) infringes any patent or intellectual property rights claimed by any third party; provided that The Buyer shall notify The Seller in writing of any such claim, act or allegation promptly after learning of the same and shall assist and cooperate in the defence or settlement thereof. Such defence or settlement shall be at The Seller’s sole expense, and The Seller shall pay all damages and costs finally awarded against The Buyer as a result of any such suit or proceeding.

11.5
The Seller shall indemnify The Buyer if there is breach of any warranty given by The Seller in relation to The Goods; any claim that The Goods infringe, or that their importation, use or resale, infringes, the patent, copyright trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any specification supplied by The Buyer; any act or omission of The Seller or its employees, agents or sub-contractors in supplying, delivering or installing The Goods.

11.6
The Seller shall indemnify The Buyer in full all claims by the customers of The Buyer (and their sub-The Buyers) arising out of any breach whatever by The Seller of this contract for sale.

12. Assignment

12.1
The Buyer may assign the contract or any part of it to any person, firm or company.

12.2
The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of The Buyer.

12.3
The Buyer is a member of the group of companies whose holding company is MHJ Limited and accordingly, The Buyer may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of The Buyer.

13. Remedies

13.1
13.1 Without prejudice to any other right or remedy which The Buyer may have, if any Goods are not supplied in accordance with, or The Seller fails to comply with, any of the terms of the contract The Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of The Goods have been accepted by The Buyer. In such circumstances The Buyer may:

13.1.1
Rescind The Order.

13.1.2
Reject The Goods (in whole or in part) and return them to The Seller at the risk and cost of The Seller on the basis that a full refund for The Goods so returned shall be paid forthwith by The Seller.

13.1.3
At The Buyer’s option, give The Seller the opportunity (at The Seller's expense) either to remedy any defect in The Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled.

13.1.4
Refuse to accept any further deliveries of The Goods, but without any liability to The Seller.

13.1.5
To carry out at The Seller's expense any work necessary to make The Goods comply with the contract.

13.1.6
To claim such damages as may have been sustained in consequence of The Seller's breach or breaches of the contract.

14. Termination

14.1
The Buyer shall be entitled to cancel the contract in respect of all, or part only, of The Goods, by giving notice in writing to The Seller at any time prior to delivery or performance, in which event The Buyer’s sole liability shall be to pay to The Seller the Price for The Goods in respect of which The Buyer has exercised its right of cancellation, less The Buyer’s reasonable estimate of The Seller’s net saving of cost arising from cancellation.

14.2
The Buyer shall be entitled to terminate the contract without liability to The Seller by giving notice to The Seller at any time if

14.3
The Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction).

14.4
An encumbrance takes possession, or a receiver is appointed, of any of the property or assets of The Seller.

14.5
The Seller ceases, or threatens to cease, to carry on business.

14.6
The Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to The Seller and notifies The Seller accordingly.

15. Force Majeure

15.1
In the event either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

15.2
Sub-clause 14.1 shall not apply with respect to strikes and lockouts, where such action has been induced by the party so incapacitated.

15.3
Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.

15.4
If and when the period of such incapacity exceeds 6 months, then this Agreement shall automatically terminate unless the parties first agree otherwise in writing.

16. Communications

16.1
All communications between the parties about the contract shall be in writing and delivered by hand, sent by first class post or sent by electronic mail:

16.2
In case of communications to The Seller, to its registered office or such changed address as shall be notified to The Buyer by The Seller; or

16.3
In the case of the communications to The Buyer, to the registered office of the addressee (if it is a company) or (in any other case) to any address of The Seller set out in any document which forms part of the Contract or such other address as shall be notified to The Seller by The Buyer.

16.4
Communications shall be deemed to have been received: if sent by pre-paid first-class post, two business days after posting (exclusive of the day of posting); or

16.4.1
if delivered by hand, on the day of delivery; or

16.4.2
if sent by electronic mail on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.

16.5
Purchase orders will be off-hired by The Buyer via email and will be deemed to be off-hired by the date specified by The Buyer.

17. Waiver

17.1
No waiver by The Buyer of any breach of the Contract by The Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

18. Severance

18.1
If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

19. Insurance

19.1
For the duration of this Agreement and for three years following its completion or termination, The Seller shall secure and maintain in effect, at its own expense, at least the following insurance coverage that will fully protect both The Seller and The Buyer.

19.2
The insurance The Seller is required to maintain under this Agreement shall: (i) name The Buyer and its affiliates, Directors, officers, employees and agents (“The Buyer Parties”) as additional insureds, (ii) be endorsed to provide a waiver of subrogation in favour of The Buyer Parties, and (iii) be primary over any other insurance available to The Buyer or any self-insurance program of The Buyer.

19.3
Prior to delivery of any materials, The Seller will provide to The Buyer certificate(s) of insurance evidencing that The Seller maintains insurance in accordance with the foregoing requirements. The Buyer shall have no obligation to examine such certificate(s) or to advise The Seller in the event the insurance is not in compliance with The Buyer’s requirements. The Buyer’s receipt and/or acceptance of certificate(s) not in compliance with The Buyer’s requirements shall not be construed as a waiver of such insurance requirements, which constitute a material condition to this Agreement. Further, the insurance coverage and amounts to be maintained are not intended to and shall not in any manner limit or qualify the liabilities and obligations of The Seller.

20. Third Party Rights

20.1
A person who is not a party to the Contract shall have no rights under this Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.

21. Governing Law and Jurisdiction

21.1
The Contract shall be governed by the laws of England and Wales and the parties agree to submit.

22. General Provisions

22.1
In order to assess The Seller’s performance under and compliance with the Agreement, including but not limited to The Seller’s compliance with respect to pricing, specifications, warranties and certifications, The Buyer and/or its designated representative(s) shall have the right, upon reasonable notice, access and audit The Seller’s facilities, books, records, goods and services related to the Agreement and Materials. The costs of any such audit will be paid by The Buyer, unless the audit reveals any nonconformance by The Seller, in which case The Seller will promptly reimburse The Buyer for the reasonable costs of the audit.

22.2
The Seller shall furnish, at The Seller’s expense, all labour, materials, equipment, transportation, facilities and other items that are necessary to meet the Order requirements. Time is of the essence in The Seller’s performance. The Seller must immediately notify The Buyer whenever The Seller has knowledge of an actual or potential delay to the timely performance of the Order. In the event of The Seller’s refusal or failure to meet the delivery date(s) specified in the Order, The Buyer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to The Seller or cancel all or part of the Order.

22.3
This Agreement shall constitute the complete understanding and contract between The Seller and The Buyer with respect to the subject matter hereof and supersedes any prior written or oral understandings with regard thereto. No purported amendment, modification or waiver of any provision of the Agreement shall be binding on The Buyer unless set forth in a written document signed by an authorized representative of The Buyer. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of the Agreement between The Seller and The Buyer or of the same circumstance or event upon any recurrence thereof.

22.4
The title to any tangible property, including but not limited to material, goods, equipment, apparatus, documents, and literary property (e.g., drawings, manuscripts, artwork, motion pictures, video programs, and computer software), provided to The Seller by The Buyer or produced by The Seller in submitting a bid or estimate or in carrying out an Order for The Buyer shall be vested in The Buyer, and The Seller agrees to return or deliver such tangible property to The Buyer upon request.

22.5
The Seller hereby expressly assigns to The Buyer all copyrights in and to any literary property produced by The Seller for The Buyer.

22.6
In the event the Agreement relates to consulting services, The Seller shall be considered a consultant and every work or idea created or acquired by or on behalf of The Seller for The Buyer (past and future) shall be considered a “work made for hire” on behalf of the The Buyer. It is the intent of the parties that The Buyer shall have unrestricted ownership in and to all such works and to any derivative works, without further compensation of any kind to The Seller. To the extent that the law would fail to automatically vest in The Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, The Seller hereby assigns to The Buyer the copyright and any and all other rights in and to every such work including any derivatives, and The Seller waives any claim of moral right that it may have in or in connection with such work.

22.7
The Buyer and The Seller acknowledge that they are each independent parties and neither shall be deemed an agent or representative of the other or have authority to bind the other in any manner whatsoever.

22.8
During the term of this Agreement and one year following completion of final delivery of the Materials, The Seller agrees that it will not, without The Buyer’s prior written consent, directly, or indirectly through third parties, employ, solicit, engage or retain the services of The Buyer’s employees or personnel.

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