Terms and Conditions of Lab-IoT Ltd
1. Acceptance – Order of Precedence – Modification
This Purchase Order is for the purchase of goods, services, or both as described on the face of this document (collectively, “Goods”) and is issued by Lab-IoT Ltd identified on the face of this document (“Lab-IoT”). This Purchase Order is deemed accepted when the Supplier returns the acknowledgment copy of this Purchase Order or begins performing, whichever is earlier. Lab-IoT rejects any additional or inconsistent terms and conditions offered by Supplier at any time. Any reference to Supplier’s quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document. No course of prior dealing or usage of the trade may modify, supplement, or explain any terms used in this Purchase Order. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of the Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, respecting the subject matter of this Purchase Order. All contract documents related to this Purchase Order are interpreted together as one agreement. But if there is an irreconcilable conflict among the provisions of those contract documents, the following order of precedence applies: (a) any consignment agreement; then (b) any supply agreement; then (c) any contract for labor services; then (d) the face of the Purchase Order and any supplemental terms included or incorporated by reference; then (e) these general Purchase Order provisions; and finally (f) other contract documents agreed to in writing by the parties. No change to or modification of this Purchase Order will be binding upon Lab-IoT unless in writing, specifically identifying that it amends this Purchase Order, and signed, or approved electronically, by an authorized procurement representative of Lab-IoT. If Supplier becomes aware of any ambiguities, issues, or discrepancies between this Purchase Order and any specification, design, or other technical requirements applicable to this Purchase Order, Supplier will immediately submit the matter to Lab-IoT for resolution.
2. Delivery, Shipment and Packaging
2.1. The supplier will deliver Goods in the quantities and on the date(s) specified on the Purchase Order or Purchase Order schedule releases. If delivery dates are not stated, Supplier will offer its best delivery date(s), which will be subject to acceptance by Lab-IoT. Unless otherwise directed, all Goods shipped in one day from and to a single location must be consolidated on one bill of lading or air waybill, as appropriate. TIME IS OF THE ESSENCE.
2.2. If the delivery schedule is endangered for any reason other than Lab-IoT’s fault then Supplier will, at its expense, deliver Goods by the most expeditious shipping method required to fulfill the Purchase Order delivery requirements. Lab-IoT reserves the right to reject, at no expense to Lab-IoT, all or any part of any delivery that varies from the quantity authorized by Lab-IoT for shipment. Lab-IoT reserves the right to pursue additional remedies caused by late delivery. The supplier will not make any substitutions without Lab-IoT’s prior written approval. All items will be packaged according to Lab-IoT’s instructions or, if none, according to good commercial practice in a manner sufficient to ensure receipt in an undamaged condition. Lab-IoT will not be liable for any discharge, spill or other environmental incidents (including clean-up costs) involving any Goods shipped under the Purchase Order until received by Lab-IoT. All containers will be properly marked for identification as instructed on Lab-IoT’s Purchase Order and contain a packing slip that details, at a minimum, the Lab-IoT Purchase Order number(s), product part number, detailed product description, country of origin, total number of boxes in shipment, quantity of product shipped, and final delivery address. Items shipped in advance of Lab-IoT’s delivery schedule may be returned at Supplier’s expense. For domestic shipments, if requested by Lab-IoT, and for all international shipments, Supplier will give notice of shipment to Lab-IoT when the Goods are delivered to a carrier for transportation. The Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading, and air waybills.
2.3. All Goods, unless specifically exempted by the destination country’s governing authorities, must be marked with the country of origin (manufacture) of the Goods in a conspicuous place as legibly, indelibly, and permanently as the nature of the article or container permits.
2.4. Supplier will provide Lab-IoT with (a) the Harmonized Tariff Schedule number, country of origin information or certificates, manufacturer’s affidavits, applicable free trade agreement (“FTA”) certificates, and any other documents or information Lab-IoT may require to comply with international trade regulations or to lawfully minimize duties, taxes, and fees, and (b) FTA certificates for all Goods that qualify under one or more FTAs. Supplier will provide Lab-IoT all documents, records, and other supporting information necessary to substantiate the Goods’ qualification under an FTA. Supplier will exert reasonable efforts to qualify the Goods under FTAs.
2.5. Within one business day after Supplier delivers the Goods to the carrier, Supplier will send Lab-IoT a complete set of shipping documents including the commercial invoice, packing list, and air waybill, or three original parts of the combined through-bill of lading, clean without notation, necessary to release the Goods to Lab-IoT’s custody.
3. Notice of Delay.
The supplier must immediately notify Lab-IoT in writing with all relevant information relating to any delay or threatened delay of the timely performance of this PO.
4. Excusable Delay (Force Majeure)
Neither party will be in default for any delay or failure to perform due to causes beyond its control and without its fault or negligence, but any delay or failure to perform caused by the default of a sub-tier supplier of Supplier will be excused only if (a) it is beyond the control of both Supplier and its sub-tier supplier(s) and without the fault or negligence of any of them, and (b) the Goods to be furnished cannot be obtained from other sources in sufficient time to permit Supplier to meet the delivery schedule. Supplier’s ability to sell Goods at a more advantageous price or Supplier’s economic hardship in buying materials or processing necessary for the manufacture of the Goods will not constitute an excusable delay event. The party affected by an excusable delay will promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the excusable delay, and will use its best efforts to remedy the delay if it can be remedied. If Supplier’s delivery is delayed, Lab-IoT may cancel deliveries scheduled during the excusable delay period or elect to extend the period of performance to cover the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Goods to Lab-IoT, Supplier will allocate its available supply of Goods in a manner that assures Lab-IoT of at least the same proportion of Supplier’s total output of Goods as was allocated to Lab-IoT before the excusable delay event. If delivery of any Goods is delayed for more than 30 days, Lab-IoT may, without liability, cancel all or any part of this Purchase Order.
5. Performance Assurance Plan
If Lab-IoT, in its sole discretion, determines there is a significant risk that Supplier will fail to meet its performance or delivery requirements under this Purchase Order, Lab-IoT may require Supplier to perform under a Lab-IoT Performance Assurance Plan. The Performance Assurance Plan may include specific reporting and performance requirements reasonably tailored to ensure Supplier’s adequate performance under identified provisions of this Purchase Order. Any failure by Supplier to satisfy the terms of the Performance Assurance Plan is a material breach of this Purchase Order.
6. Shipping Terms, Title, and Risk of Loss
6.1. If the Goods will be transported from Supplier’s location in the U.S. to Lab-IoT’s location in the U.S., unless otherwise specified on the face of the Purchase Order or in a separate agreement, the F. O. B. point is Lab-IoT’s location. When the F. O. B. point is Supplier’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Lab-IoT upon delivery of the Goods to the carrier designated or approved by Lab-IoT. When the F. O. B. point is Lab-IoT’s location, Supplier bears all risk of loss or damage to the Goods and title passes to Lab-IoT upon delivery of the Goods at Lab-IoT’s location.
6.2. In all other cases, unless otherwise specified on the face of the Purchase Order or in a separate agreement, Supplier will deliver the Goods DDU (Incoterms 2000) at Lab-IoT’s location. Title to Goods passes to Lab-IoT upon receipt at Lab-IoT’s location.
6.3. The foregoing does not relieve Supplier of any responsibility for hidden damages discovered after acceptance of the Goods. Notwithstanding the foregoing, title and risk of loss to Goods subject to a consignment stock agreement pass upon release of the Goods from the consignment stock. Lab-IoT may direct Supplier to ship the Goods to Lab-IoT or to any third party designated by Lab-IoT.
7. Import/Customs Compliance
Supplier assumes all responsibility and liability for any shipments covered by this Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under this Purchase Order, Lab-IoT reserves the right to terminate this Purchase Order under the Termination provisions of this Purchase Order. Supplier will be debited for any duties, fees, or freight incurred by Lab-IoT due to Supplier’s failure to comply with the terms and conditions of this Purchase Order.
All drawback of duties, and rights thereto, related to duties paid by Supplier or Lab-IoT when the Goods are imported or any materials or components used in manufacturing of the Goods will accrue to the exclusive benefit of Lab-IoT. Duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub-tier suppliers related to the Goods. Supplier will provide Lab-IoT with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with Lab-IoT to obtain payment.
If Supplier is a non-U.S. entity, Supplier will assist Lab-IoT in obtaining credit from Supplier’s government for the value of relevant Goods purchased to meet any present or future contractual offer or industrial benefit requirements imposed upon Lab-IoT or its subsidiaries or affiliates. Assistance includes, but is not limited to, providing upon Lab-IoT’s request evidence of the existence, value, content, and other pertinent information relating to the purchases. Lab-IoT reserves the right to claim these credits for itself or third parties. If Supplier is a U.S. entity that awards any portion of the work under this Purchase Order to any lower tier non-U.S. supplier, Supplier will assign to Lab-IoT any credits obtained from the lower tier non-U.S. supplier’s government relating to this transaction and assist Lab-IoT in obtaining the earned credits.
10. Lab-IoT-Supplied Materials, Tooling, Equipment and Technical Data
10.1 Title to any material, tooling, equipment, or technical data that Lab-IoT pays for or provides to Supplier or is responsible for providing to Supplier, including replacements (“Lab-IoT Property”), will remain or vest with Lab-IoT. Supplier will conspicuously label Lab-IoT Property as such, maintain it in good condition, keep written records of the Lab-IoT Property in its possession and the location of the property, not allow any liens to be placed upon it, and not change its location without prior written approval from Lab-IoT. Supplier is responsible for inspecting and determining that the Lab-IoT Property is in useable and acceptable condition.
10.2 Supplier will use Lab-IoT Property exclusively to fulfill Lab-IoT Purchase Orders unless otherwise authorized in writing by Lab-IoT’s procurement representative. Lab-IoT Property is intended for use at the Supplier’s site only or as otherwise authorized in writing by Lab-IoT’s procurement representative and, to the extent applicable, is subject to U.S. and other government export or re-export requirements. Supplier is responsible for any loss, damage, or destruction of Lab-IoT Property and any loss, damage or destruction of any third-party property resulting from Supplier’s negligent use of Lab-IoT Property. Supplier will not include the cost of any insurance for Lab-IoT Property in the prices charged under this Purchase Order. Supplier will return Lab-IoT Property or dispose of it as Lab-IoT directs in writing. Lab-IoT makes no representations and disclaims all warranties (express or implied) with respect to Lab-IoT Property.
Supplier will furnish the Goods at the prices stated on the face of the Purchase Order. If prices are not stated on the face of the Purchase Order, Supplier will offer its lowest prices subject to written acceptance by Lab-IoT. Unless otherwise provided on the face of the Purchase Order, the prices include all packaging and freight to the specified delivery point; applicable taxes and other government charges including, but not limited to, all sales, use, or excise taxes; and all customs duties, fees, or charges. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to Lab-IoT of any Goods, Lab-IoT will pay the tax as an addition to payments otherwise due Supplier under this Purchase Order, if Supplier provides to Lab-IoT a value-added tax (or equivalent tax) invoice. Upon the agreement of the parties to reduced pricing for the Goods, such pricing shall immediately apply to all Goods in consignment or under a stocking arrangement with Supplier, all undelivered Goods, all open and unfilled Purchase Orders, all future Purchase Orders and all unconsumed inventory owned by Lab-IoT.
12. Price: Most Favored Customer and Meet or Release
Supplier warrants that the prices charged for the Goods delivered under this Purchase Order are the lowest prices charged by Supplier for similar Goods. If Supplier charges a lower price for similar Goods, Supplier must notify Lab-IoT and apply that price to all Goods ordered under this Purchase Order. If at any time before full performance of this Purchase Order Lab-IoT notifies Supplier in writing that Lab-IoT has received a written offer from another supplier for similar Goods at a price lower than the price set forth in this Purchase Order, Supplier must immediately meet the lower price for any undelivered Goods. If Supplier fails to meet the lower price Lab-IoT, at its option, may terminate the balance of the Purchase Order without liability. As directed by Lab-IoT, Supplier will provide the Goods at the prices listed on the face of this Purchase Order, subject to these terms and conditions, to other Lab-IoT divisions and affiliates and any third-party Lab-IoT sub-supplier or designee.
13. Invoicing and Payment
After each shipment made or service provided, Supplier will submit an invoice listing a description of the Goods provided and, as applicable, part numbers, quantity, unit of measure, hours, and the unit and total prices. This invoice must match the corresponding Purchase Order pricing, quantities, and terms, and must be sent to the invoice address listed on the Purchase Order. All applicable taxes and other Government charges including, but not limited to, sales, use, or excise taxes; value added tax, customs duties, fees and all incidental charges including but not limited to royalties, selling commissions, non-recurring engineering, or other incidental charges must be separately itemized and identified on the invoice. The invoice must also include the following information in English, or in the destination country’s official language if required: (a) name and address of Supplier and the Lab-IoT entity purchasing the Goods; (b) name of shipper (if different from Supplier); (c) Lab-IoT’s Purchase Order number(s); (d) country of export; (e) detailed description of the Goods; (f) Harmonized Tariff Schedule number; (g) country of origin (manufacture) of the Goods, or if multiple countries of origin, the country of origin of each part shipped; (h) weights of the Goods shipped; (i) currency in which the sale was made; (j) payment terms; (k) shipment terms used; and (l) all rebates or discounts. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the Goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Purchase Order. Payment terms are net 120 days from receipt of a Lab-IoT- approved invoice unless otherwise stated on the face of the Purchase Order or other written agreement executed by both parties. Invoices will not be approved unless they accurately reference conforming Goods received by Lab-IoT or services satisfactorily performed for Lab-IoT. Payment will be scheduled for the first payment cycle following the net terms for the Purchase Order.
14. Set Off.
Lab-IoT may deduct any amount owing from Supplier to Lab-IoT as a set off against any amount owing to Supplier under this Purchase Order.
15.1. All Goods may be inspected and tested by Lab-IoT, its customers, higher-tier contractors, and end users at all reasonable times and places. If inspection or testing is made on Supplier’s premises, Supplier will provide, without charge, all reasonable facilities and assistance required for the inspection and tests. Supplier’s standard inspection and testing system must be approved by Lab-IoT in writing. All inspection and testing records, including sub-tier supplier records relating to the Goods, will be maintained by Supplier and made available to Lab-IoT during the performance of this Purchase Order, and for such longer periods if specified by Lab-IoT.
15.2. Final inspection and acceptance by Lab-IoT will be at destination unless otherwise specified in this Purchase Order. Lab-IoT may inspect all or a sample of Goods and may reject all or any portion of the Goods if Lab-IoT determines them to be defective or nonconforming. If Lab-IoT performs any inspection (other than the standard inspection) after discovering defective or nonconforming Goods, any additional inspection costs will be paid by Supplier. No inspection, tests, approval, design approval, or acceptance of the Goods relieves Supplier from responsibility for warranty or any latent or patent defects, fraud, or negligence. If Goods are defective or nonconforming, Lab-IoT may, by written notice to Supplier: (a) rescind this Purchase Order as to the Goods; (b) accept the Goods at an equitable reduction in price; or (c) reject the Goods and require the delivery of replacements. Delivery of replacements will be accompanied by a written notice specifying that the Goods are replacements. If Supplier fails to deliver required replacements promptly, Lab-IoT may correct any retained defective or nonconforming Goods at Supplier’s expense; replace them with Goods from another supplier and charge the Supplier the cost thereof, including cover, and any incidental costs; or terminate this Purchase Order for cause.
16.1. Supplier warrants to Lab-IoT, its successors, assigns, customers, and end users that during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components) will (a) be free from defects in material, workmanship, and design, even if the design has been approved by Lab-IoT, (b) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Lab-IoT, (c) be merchantable, (d) be fit for the intended purposes and operate as intended, (e) comply with all laws, (f) be free and clear of any and all liens or other encumbrances, and (g) not infringe any patent, published patent application, or other intellectual property rights of any third party and not utilize misappropriated third party trade secret information. Goods that meet the preceding standards are collectively called “conforming Goods.”
16.2. As to services, in addition to any express or implied warranties, Supplier warrants that (a) it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the services, (b) the services will be performed in a safe and workmanlike manner, and (c) the services will be performed in accordance with the highest standards in the industry.
16.3. The Warranty Period is 24 months from the date of delivery to the end user or such longer period of time mandated by any longer government requirement covering the Goods. In addition to the warranties described above, Supplier also warrants all Goods to the same extent and for the same time period (if extending beyond 24 months) as the warranties provided by Lab-IoT to Lab-IoT’s customers relating to such Goods. These warranties are for the benefit of Lab-IoT, Lab-IoT’s customers, and any other person claiming by or through Lab-IoT. These warranties will survive any delivery, inspection, acceptance, or payment by Lab-IoT. Claims for breach of warranty do not accrue until discovery of nonconformance, even if the Goods were previously inspected. Any applicable statute of limitations runs from the date of discovery. If conforming Goods are not furnished within the time specified by Lab-IoT then Lab-IoT may, at its election, have the nonconforming Goods repaired, replaced, or corrected at Supplier’s expense or credited to Lab-IoT. Supplier is responsible for the costs of repairing, replacing or correcting nonconforming Goods or crediting them to Lab-IoT, and for all related costs, expenses and damages including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection, and retrofit of the nonconforming Goods or of Lab-IoT’s affected end-product; all freight charges; all customer charges; and all corrective action costs. Unless set off by Lab-IoT, Supplier will reimburse Lab-IoT for all such costs upon receipt of Lab-IoT’s invoice. Any replacement Goods are warranted for the same period as the original Goods. Additionally, if any services are found not to be performed as warranted within a period of 24 months after the conclusion of the performance of the services by Supplier, Lab-IoT may direct Supplier to either refund to Lab-IoT the amount paid for the services, or perform the services again in a proper manner to the extent necessary to provide Lab-IoT with the result originally contemplated by Lab-IoT. The warranties and rights provided are cumulative and in addition to any warranty provided by law or equity.
Lab-IoT may, by written or electronic notification, direct changes in the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods; reschedule the services; or require additional or diminished services. Only authorized Lab-IoT procurement representatives may issue changes to the Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment will be made in the Purchase Order price, delivery dates or both, and this Purchase Order will be modified in writing or electronically accordingly. Any claim by Supplier for adjustment under this provision may be deemed to be waived unless asserted in writing (including the amount of the claim) and delivered to Lab-IoT within 30 days from the date of the receipt by Supplier of the Lab-IoT-directed change to the Purchase Order. If the cost of property made obsolete or excess as a result of a change is paid by Lab-IoT, Lab-IoT may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement.
18. Design and Process Changes
Supplier will make no changes in the design, materials, manufacturing location, or processes of the Goods specified in the Purchase Order or documents referenced in it, or if none, those in place when the Purchase Order is issued, without the advance written approval of Lab-IoT’s procurement representative. Changes to a process include, but are not limited to, changes to the production process, changes in manufacturing equipment, changes in manufacturing location, or changes between a manual and automated process. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
19. Stop Work
At any time by written notice and at no cost, Lab-IoT may require Supplier to stop all or any part of the work under this Purchase Order for up to 120 days (“Stop Work Order”), and for any further period as mutually agreed. Immediately upon receipt of a Stop Work Order, Supplier will comply with its terms. At any time Lab-IoT may, in whole or in part, either cancel the Stop Work Order or terminate the work under the Termination section of this Purchase Order. To the extent the Stop Work Order is canceled or expires, Supplier must immediately resume work.
20.1. The nonbreaching party may terminate this Purchase Order if the other party commits a material breach and fails to remedy the breach within 10 calendar days following receipt of written notice specifying the grounds for the breach. A material breach includes, but is not limited to, late delivery or delivery of nonconforming Goods. If Supplier breaches its obligations to Lab-IoT and Lab-IoT terminates this Purchase Order in whole or in part, Lab-IoT may charge Supplier for any additional cost it incurs in performing Supplier’s obligations or in having such obligations performed by a third party. The solvent party may terminate this Purchase Order upon written notice if the other party becomes insolvent or if any petition is filed or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If a termination by Lab-IoT for breach by Supplier is determined to have lacked cause, such termination will be treated as a termination without cause under Section 20.2.
20.2. Notwithstanding any firm time period or quantity on the face of the Purchase Order, Lab-IoT may terminate this Purchase Order in whole or in part at any time with or without cause for undelivered Goods or unperformed services upon 10 days’ prior written notice.
20.3. If Lab-IoT terminates this Purchase Order under either 20.1 or 20.2, Lab-IoT’s sole liability to Supplier, and Supplier’s sole and exclusive remedy, is payment for Goods received and accepted by Lab-IoT before the date of termination. The payment can be set off against any damages to Lab-IoT. Upon termination, Lab-IoT may require Supplier to transfer title and deliver to Lab-IoT any completed Goods and Lab-IoT will pay the Purchase Order price for those Goods subject to set off against any damages to Lab-IoT. Lab-IoT may also require Supplier to transfer title and deliver to Lab-IoT any or all property produced or procured by Supplier to perform this Purchase Order. Lab-IoT will credit Supplier with the reasonable value of the property, but not more than Supplier’s actual cost or the Purchase Order value, whichever is less.
20.4. To the extent that any portion of this Purchase Order is not terminated under 20.1 or 20.2 above, Supplier will continue performing that portion.
21. Cessation of Production
If production of any Good is to be discontinued or suspended within 1 year after final delivery under this Purchase Order, Supplier must give Lab-IoT as much prior written notice as commercially reasonable of the discontinuance or suspension. For at least 180 days from the discontinuance or suspension, Supplier must accept orders from Lab-IoT for the Good at the price and on the terms of this Purchase Order.
22. General Indemnification
Supplier will, at its expense, defend and indemnify Lab-IoT and its subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees, and Lab-IoT’s customers (collectively “Indemnitees”) from and against any and all loss, cost, expense, damage, liquidated damages, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict (collectively, “Damages”) incurred by or demanded of an Indemnitee arising out of, resulting from or occurring in connection with Supplier’s Goods or services or Supplier’s negligence, willful misconduct, or breach of the terms of this Purchase Order. In no event will Supplier enter into any settlement without Lab-IoT’s prior written consent, which will not be unreasonably withheld. If Lab-IoT is obligated to pay Damages pursuant to its contract with a customer, then Supplier will be liable for such Damages to the extent Supplier causes or contributes to those Damages. Nothing in this Section limits Lab-IoT’s right to claim all actual damages sustained by Lab-IoT as a result of Supplier-caused delays.
23. Intellectual Property Indemnification
For Goods provided under this Purchase Order, Supplier will, at its expense, defend and indemnify Indemnitee from and against any and all loss, cost, expense, damage, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from Indemnitee arising out of, resulting from, or occurring in connection with any alleged: (a) patent, copyright, or trademark infringement; (b) unlawful disclosure, use, or misappropriation of a trade secret; or (c) violation of any other third-party intellectual property right, and from expenses incurred by Indemnitee in defense of such suit, claim, or proceeding if Supplier does not undertake the defense thereof. Supplier will have the right to conduct the defense of any such claim or action and, consistent with Indemnitee’s rights hereunder, all negotiations for its settlement. But in no event will Supplier enter into any settlement without Lab-IoT’s prior written consent, which will not be unreasonably withheld. Indemnitee may participate in a defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at its expense, obtain for Indemnitee either the right to continue using and selling the Goods or replace or modify the Goods to make them no infringing.
Supplier will maintain and carry liability insurance in an amount no less than the greater of (a) the minimum amount required by applicable law, or (b) the following coverages: commercial general liability (including product liability and, for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, worker’s compensation in an amount no less than the applicable statutory minimum requirement, and employer’s liability in an amount of no less than $5 million, all with insurance carriers with an AM Bests rating of no less than A- or equivalent. In addition, Supplier is responsible for maintaining an adequate level of insurance to cover any potential losses due to damage to Lab-IoT Property, as defined in Section 10. All insurance required by this Section must cover Lab-IoT, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents as additional insureds. Before delivery of any Goods or commencement of any services under the Purchase Order, Supplier will provide to Lab-IoT evidence that Seller maintains the described insurance, and that the coverage will not be changed without 30 days advance written notification to Lab-IoT from the carrier(s). Except where prohibited by law, Supplier will require its insurers to waive all rights of recovery or subrogation against Lab-IoT, its subsidiaries and affiliated companies, and its and their respective officers, directors, shareholders, employees, and agents. The amount of insurance carried in compliance with the above requirements is not to be construed as either a limitation on or satisfaction of the indemnification obligation in this Purchase Order.
25. Lien Waivers
Supplier will furnish, upon Lab-IoT’s request, waivers by Supplier and all other persons entitled to assert any lien rights in connection with the performance of this Purchase Order and will indemnify Lab-IoT against all costs, loss or liability incurred by Lab-IoT as a result of any failure by Supplier or any other person to comply with this provision.
26. Confidentiality and Intellectual Property
26.1. All information, including without limitation specifications, samples, drawings, materials, know-how, designs, processes, and other technical, business, or financial information, that: (a) has been or will be supplied to Supplier by or on behalf of Lab-IoT; or (b) Supplier will design, develop, or create in connection with this Purchase Order; as to individual items or a combination of components or both, and whether or not completed, and all derivatives of (a) and (b) that Supplier has or will design, develop or create are deemed to be “Confidential Information” of Lab-IoT. All Confidential Information is work made for hire and made in the course of services rendered. All rights to it belong exclusively to Lab-IoT, with Lab-IoT having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. To the extent that exclusive title or ownership rights in Confidential Information may not originally vest in Lab-IoT, Seller irrevocably assigns transfers and conveys to Lab-IoT all right, title, and interest therein.
26.2. Lab-IoT’s Confidential Information will remain the property of Lab-IoT. It may not be used by Supplier for any purpose other than for performing this Purchase Order, may not be disclosed to any third party, and will be returned to Lab-IoT upon the earlier of Lab-IoT’s written request or completion of the Purchase Order. If, with Lab-IoT’s prior written approval, Supplier furnishes Confidential Information to a sub-tier supplier, Supplier will bind the sub-tier supplier to confidentiality requirements substantially identical to this provision and Supplier will remain responsible to Lab-IoT for any breach of this provision by its sub-tier suppliers. No disclosure, description or other communication of any sort will be made by Supplier to any third person of the fact of Lab-IoT’s purchase of Goods hereunder, the terms of this Purchase Order, the substance of any discussions or negotiations concerning this Purchase Order, or either party’s performance under this Purchase Order.
26.3. “Personal Data” means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Supplier will: (a) treat Personal Data of all Lab-IoT personnel and prospective Lab-IoT personnel as Confidential Information; (b) take appropriate technical and organizational security measures as are required by Lab-IoT to protect Personal Data; (c) use and permit employees and third parties to use Personal Data pursuant to Lab-IoT’s instructions only for purposes directly related to the performance of obligations under this Agreement; (d) refrain from transferring Personal Data out of the European Union unless Lab-IoT has given its prior consent to the transfer and Supplier has satisfied any further requirements reasonably imposed by Lab-IoT; (e) indemnify Lab-IoT against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which Lab-IoT may suffer or incur arising out of any breach of this Section 26.3; and (f) promptly notify Lab-IoT about: any legally binding request for disclosure of Personal Data by a law enforcement agency (unless otherwise prohibited); any accidental or unauthorized processing of Personal Data; and any requests received from individuals to whom Personal Data relates, without responding to that request unless it has been otherwise authorized to do so by Lab-IoT. If Supplier will process Personal Data that Lab-IoT transfers from any of its affiliates in the European Union to any of its affiliates in the US pursuant to the U.S. – EU Safe Harbor Framework (“Safe Harbor Personal Data”), Supplier warrants that either (a) Supplier self-certifies to the U.S. – EU Safe Harbor Framework with respect to the processing of the Safe Harbor Personal Data and will notify Lab-IoT immediately if its self-certification terminates for any reason, or (b) Supplier must provide at least the same level of privacy protection as required by the U.S. – EU Safe harbor Framework.
27.1. Supplier will maintain detailed records reflecting Supplier’s compliance with this Purchase Order for at least 5 years from the date of last delivery. Supplier will provide, and will cause each of its sub- tier suppliers to provide, access for Lab-IoT’s auditors, all regulatory authorities and Lab-IoT’s customers to have access at all reasonable times to facilities, books and other pertinent records and any other information as requested by Lab-IoT’s auditors.
27.2. If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following the discovery of the error and the resulting payment/credit will be issued promptly. Supplier will, and will cause its sub-tier suppliers to, promptly correct any other Supplier deficiencies discovered as a result of the audit.
28. Limitation of Liability
HONEYWELL IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR LOSS OF USE OF ANY PROPERTY OR CAPITAL) EVEN IF ADVISED, OR OTHERWISE AWARE, OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE EXCLUSION OF SUCH DAMAGES IS INDEPENDENT OF, AND WILL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS AND CONDITIONS.
29. Assignment and Subcontracting
Supplier will not assign this Purchase Order or any rights or obligations under it or subcontract all or any material aspect of the work called for without the prior written approval of Lab-IoT. Any assignment without Lab-IoT’s written approval will be voidable at the option of Lab-IoT. Lab-IoT may assign this Purchase Order or any of its rights or obligations to any of its subsidiaries or affiliates, or to any purchaser or successor to all or substantially all of the assets of the business or product line to which this Purchase Order relates without Supplier’s consent and upon written notice to Supplier.
30. Relationship of Parties/Independent Contractor
Nothing in this Purchase Order will be construed to place Supplier and Lab-IoT in an agency, employment, franchise, joint venture, or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Purchase Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Supplier will perform its obligations under this Purchase Order as an independent contractor. Supplier has the obligation for Supplier’s performance hereunder, including the employment, direction, compensation and discharge of Supplier’s personnel, as well as compliance with workers’ compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters.
31. Compliance with Laws and Integrity
31.1. Supplier will comply with all laws, regulations and ordinances and Lab-IoT’s Code of Business Conduct (“Code”) in performing this Purchase Order. A copy of the Code may be obtained at www.honeywell.com/sites/honeywell/codeofconduct.htm. Supplier will maintain an integrity and compliance program acceptable to Lab-IoT and effective in preventing and correcting ethical violations and in maintaining compliance with laws.
31.2. Upon request, in form and substance satisfactory to enable Lab-IoT to meet its compliance obligations with regard to Regulation (EC) No. 1907/2006 (“REACH”), Supplier will provide Lab-IoT with complete information regarding the chemical composition of any Goods supplied under this Purchase Order, including all safety information required under REACH and information regarding the registration or pre-registration status of any Goods pursuant to REACH. Supplier agrees that it will include any Lab-IoT “Identified Use” in its REACH registrations or applications for Authorization, unless Supplier notifies Lab-IoT that it rejects the Identified Use in order to protect human health or the environment and specifies the reason for the rejection, in which case Lab-IoT will have the right to terminate this Purchase Order without incurring any damages.
31.3. Absent Lab-IoT’s prior written consent, no Goods will contain any of the substances identified in Article 4.1 of the European Parliament Directive 2002/95/EC (RoHS Directive) as that Directive is updated from time to time, or similar applicable laws or regulations, restricting the use of hazardous materials in other jurisdictions..
31.4. Goods will comply with the restrictions set forth in the Montreal Protocol on ozone-depleting substances.
31.5. Supplier will be responsible for all costs and liabilities for or relating to the recycling of Goods pursuant to the most current version of European Parliament Directive 2002/96/EC (WEEE Directive) as that Directive is implemented in any country.
32. Applicable Law and Forum
32.1. UNITEDSTATES If Lab-IoT is a legal entity formed in the United States, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto), and the federal or state courts in New York, New York will have exclusive jurisdiction of any dispute.
32.2. ASIA PACIFIC If Lab-IoT is a legal entity formed in an Asia Pacific country, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the country under which the Lab-IoT entity is formed, excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto), and the courts of that country will have exclusive jurisdiction of any dispute except for the following locations where and any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be finally resolved in accordance with the rules of arbitration as noted below. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration and the language of arbitration will be selected by Lab-IoT.
China – in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission
India – in accordance with the arbitration rules of the Indian Arbitration and Conciliation Act 1996
Singapore, Indonesia, Vietnam, Australia, and New Zealand – in accordance with the arbitration rules of the Singapore International Arbitration Center
Korea – in accordance with the arbitration rules of the Korean Commercial Arbitration Board
Hong Kong – in accordance with the arbitration rules of the Hong Kong International Arbitration Center
Malaysia – in accordance with the arbitration rules of the Kuala Lumpor Regional Arbitration Centre
Taiwan – in accordance with the arbitration rules of the local Arbitration Act Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this Purchase Order, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator’s determination of the merits of the controversy.
32.3. EUROPE, MIDDLE EAST , AND AFRICA If Lab-IoT is a legal entity formed in a European, Middle Eastern or African country then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the country under which the Lab-IoT entity is formed, excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto) if applicable in such country, and any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be finally resolved by a panel of three arbitrators in accordance with the Rules for Arbitration of the London Court of International Arbitration. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration and the language of arbitration will be selected by Lab-IoT. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator’s determination of the merits of the controversy.
32.4. OTHERLOCATIONS For those Purchase Orders issued by Lab-IoT entities formed in countries not identified above, (a) the laws of the country, and if applicable, state or province where the Lab-IoT entity issuing the Purchase Order was formed will apply and (b) the courts sitting in the country, and if applicable, state or province, where the Lab-IoT entity issuing the Purchase Order was formed will have exclusive jurisdiction of any dispute. Pending settlement or final resolution of any dispute, Supplier will proceed diligently with the performance of this Purchase Order in accordance with Lab-IoT’s directions.
All Lab-IoT remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to Lab-IoT at law or in equity.
Notices relating to this Purchase Order must be in writing and may be delivered personally, by overnight courier, or by certified first class mail, postage prepaid (each to the respective addresses appearing on the face of this Purchase Order; sent by fax to the respective fax number provided by Lab-IoT or Supplier; or sent by electronic mail with proof of delivery to the respective electronic address provided by Lab-IoT or Supplier. A. Notice will be deemed given on the date delivered if delivered personally; 3 business days after being placed in the mail as specified above; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by fax or electronic mail.
Any news release, public announcement, advertisement, publicity or any other disclosure concerning this Purchase Order to any third party except as may be necessary to comply with other obligations stated in this Purchase Order requires prior written approval of Lab-IoT.
36. Headings and Captions
Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of any provision of this Purchase Order.
The failure of either party to enforce at any time any of the provisions of this Purchase Order will not be construed to be a continuing waiver of those provisions, nor will any such failure prejudice the right of the party to take any action in the future to enforce any provision.
If any provision of this Purchase Order is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, that provision will be severed from this Purchase Order; the remaining provisions will remain in full force and effect; and a similar legal, valid and enforceable provision will be substituted in lieu of the severed provision.
39. Supply Chain Security
Supplier will implement the Business Partner Criteria of any Supply Chain Security Program that the country of import for the Goods may adopt such as the U.S. Customs-Trade Partnership against Terrorism (C-TPAT) or the Canadian Partners in Protection (PIP) Program.
All provisions of this Purchase Order which by their nature should apply beyond its term will remain in force after any termination or expiration of this Purchase Order including, but not limited to, those addressing the following subjects: Import/Customs Compliance, Price, Price: Most Favored Customer and Meet or Release, Invoicing and Payment, Set Off, Warranty, Cessation of Production, General Indemnification, Intellectual Property Indemnification, Insurance, Confidentiality and Intellectual Property, Audit, Applicable Law and Forum, Publicity, and Survival.
31. August, 2009