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CONDITIONS OF PURCHASE
GE LIGHTING & CURRENT, POWERED BY GE
1.
ACCEPTANCE AND TERMS AND CONDITIONS:
(a)
Supplier agrees to sell and Buyer agrees to buy the materials, products and/or equipment (the
“
Products
”) and/or the services (the “
Services
”) set forth on the face of Buyer’s Purchase Order (“
PO
”)
and all Deliverables in connection with such Services. “
Deliverables
” means all items in tangible and
intangible form, including inventions, discoveries, works of authorship, programs, applications, derivative
works, source code, object code, ideas, techniques, methods, processes, information, data,
documentation and materials, that Supplier creates, prepares or delivers to Buyer, or otherwise produces,
conceives, makes, proposes or develops as a result of this Contract (as defined below) in the context of
rendering the Services.
(b)
Supplier agrees to be bound by and to comply with Buyer’s
PO, these conditions of purchase,
including any supplements thereto, any Material Arrival Schedule (“
MAS
”) or release issued thereunder
(“
Release
”), and all specifications and other documents referred to in the Purchase Order or herein, all of
which are incorporated herein by reference, and are collectively referred to as the “
Contract
”. Written
acceptance or commencement of performance of the work specified in the PO shall be deemed
acceptance thereof and of this Contract. This Contract does not, expressly or impliedly, constitute an
acceptance by Buyer of any Supplier offer to sell, quotation, or proposal and reference in this Contract to
any such Supplier offer shall neither constitute a modification of any of the terms and conditions of this
Contract nor any intent or indication by Buyer to be bound by any such offer, quotation or proposal.
Each
of Buyer and Supplier may be referred to as a “Party” or together as the “Parties”.
UNLESS
OTHERWISE AGREED TO IN WRITING, THIS CONTRACT CONSTITUTES THE SOLE AGREEMENT
BETWEEN BUYER AND SUPPLIER RESPECTING GOODS AND SERVICES SPECIFIED IN A PO
AND BUYER HEREBY OBJECTS TO AND REJECTS ANY ADDITIONAL OR DIFFERENT TERMS.
(c)
Supplier agrees to participate in all of Buyer’s current and future electronic commerce
applications and initiatives upon Buyer’s request. For contract formation, administration, changes and all
other purposes, each electronic message sent between the parties within such applications or initiatives
will be deemed: (i) “written” and a “writing”; (ii) “signed” (in the manner below); and (iii) an original
business record when printed from electronic files or records established and maintained in the normal
course of business. The parties expressly waive any right to object to the validity, effectiveness or
enforceability of any such electronic message on the ground that a “statute of frauds” or any other law or
rule of evidence requires written, signed agreements. Between the parties, any such electronic
documents may be introduced as substantive evidence in any proceedings as business records as if
originated and maintained in paper form. Neither party shall object to the admissibility of any such
electronic document for any reason including without limitation, the hearsay (FRE 802) and best evidence
(FRE 1002) rules. By placing a name or other identifier on any such electronic message, the party doing
so intends to sign the message with his/her signature attributed to the message content. The effect of
each such message will be determined by the electronic message content and by New York law,
excluding any such law requiring signed agreement or otherwise in conflict with this paragraph.
2.
APPLICABLE LAW:
Supplier and Buyer hereby consent to the sole application of the internal
substantive laws of the State of New York, U.S.A., without giving effect to its conflict or choice of law
rules.
The United Nations Convention on the International Sale of Goods shall not apply.
3.
BUYER’S COMMITMENT UNDER PO, MATERIAL ARRIVAL SCHEDULE OR RELEASE:
(a)
Buyer is not committed to purchase any Products and/or Services and Deliverables except for
such Products and/or Services and Deliverables as may be specified as Firm Orders in an MAS or
Release on the face of a PO or on a separate MAS or Release issued by Buyer under a PO. Under no
circumstances shall Buyer be under an obligation to Supplier for Products and/or Services and
Deliverables not specifically covered by a PO and/or MAS or Release, in an amount in excess of the
quantity so specified in any of the foregoing, or for forecast quantities specified in any of the foregoing.
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(b)
Supplier shall sell Products and/or Services and Deliverables to Buyer pursuant to a PO and
Buyer’s Firm Orders specified in an MAS and/or Release issued hereunder. Unless otherwise agreed to
in writing, Supplier shall not make material commitments or production arrangements in excess of the
amount or in advance of the time necessary to meet the requirements of the MAS or Release. Products
and/or Deliverables shipped in advance or in excess of the MAS or Release requirements may be
returned to Supplier at Supplier's risk and expense, and Supplier shall reimburse Buyer for all costs
incurred for warehousing, storage and handling of said Products and/or Deliverables.
4.
CHANGES:
(a)
Buyer shall have the right at any time to make changes of any kind (including quantity and
Buyer’s specifications) to this Contract. If Supplier believes that such change affects the price or delivery
date for such Products and/or Services and Deliverables, Supplier shall so notify Buyer in writing (with
adequate supporting documentation) within five (5) working days after receipt of Buyer’s change notice
and an equitable adjustment may be considered by Buyer. Supplier’s request for any adjustments shall
be waived unless submitted within such five (5) day period. If released in writing by Buyer, Supplier shall
comply with and perform such change during the time Supplier and Buyer require to mutually agree upon
an equitable adjustment, if any.
(b)
Supplier shall notify Buyer in writing in advance of any and all changes to the Products and/or
Services and Deliverables or the specifications or composition of each, and of all process changes, plant
moves, equipment changes or moves, or changes in sub-suppliers or subcontractors (as such terms are
defined in Section 29 below), and no such change shall occur without Buyer’s prior written consent.
Supplier shall give Buyer prior written notice of any such change and Buyer may conduct such audits,
surveys and testing as necessary to determine the impact of such proposed change on the Product. All
such changes shall be documented by Supplier by following change procedures issued by Buyer from
time to time. It shall be the responsibility of Supplier to obtain, complete and submit proper
documentation regarding any and all changes. Any such change made without the explicit written
consent of Buyer shall constitute a material breach, and Buyer shall have the right to terminate this
Contract immediately and without prior notice to Supplier.
5.
BUYER’S PROPERTY:
(a)
Buyer assumes no obligation to furnish Supplier with any tools, equipment or materials for the
performance of Supplier under this Contract except as may be expressly provided otherwise; however, if
Supplier or its subcontractors or the employees, representatives, agents or invitees of any of them, make
use of any tools, equipment or materials owned by Buyer, such tools, equipment or materials shall be
accepted in “as is” condition, without any warranty whatsoever, express or implied, and Supplier shall
indemnify and save harmless Buyer (including its directors, officers, employees and agents) from and
against any and all loss or liability (including reasonable attorneys' fees and court costs) relating to or in
respect of any failure of such tools, equipment and/or materials to be suitable for their intended purpose
or for any damage, destruction, injury or death arising from the use of such tools, equipment and/or
materials.
(b)
Any and all tools, equipment, material, and components furnished to Supplier by Buyer or
specially paid for by Buyer and any replacements thereof or attachments thereto shall be and remain the
property of Buyer. Such property shall be adequately identified by Supplier if held in the U.S. as
“Property of General Electric Company” or if held outside the U.S. as property of Buyer’s designated
affiliate, stored separately from Supplier’s property, and properly maintained by Supplier. Supplier shall
not substitute any other property for Buyer’s property and shall not use such property except in filling
Buyer’s orders. Buyer’s property while in Supplier’s custody or control shall be held at Supplier’s risk and
shall be kept free of encumbrances and insured by Supplier, at Supplier’s expense, in an amount equal to
the replacement cost with loss payable to Buyer.
Such property shall be subject to removal at Buyer’s
request, in which event Supplier shall prepare such property for shipment and shall redeliver such
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property to Buyer in the same condition as originally received by Supplier, reasonable wear and tear
excepted, all at Supplier’s expense.
6.
BUYER'S RIGHT TO ENTER PREMISES:
Supplier shall permit and obtain from its sub-
suppliers and subcontractors permission for Buyer to have reasonable access to the sites where the
work under this Contract is performed in order to assess (a) Product and/or Service and Deliverable
quality, (b) conformance with Buyer’s specifications, and (c) conformance with Supplier’s
representations, warranties, certifications and covenants under this Contract. This provision shall
include but not be limited to the right to inspect and test all Products, Deliverables, tooling, and
workmanship and to inspect and audit Supplier’s and its sub-suppliers’ and subcontractors’ facilities
and performance. The failure to audit, test or inspect by Buyer will neither relieve Supplier of any
liability for defects or Contract noncompliance, nor create any liability on the part of Buyer.
7.
DEFAULT AND REMEDIES:
Should Supplier breach this Contract, in whole or in part, Buyer
shall have the right to terminate this Contract, in whole or in part, pursuant to Section 8 below, without
further obligation or liability, and shall have all remedies available to it at law or in equity.
8.
TERMINATION, CANCELLATION AND SUSPENSION:
(a)This Contract may be terminated as follows:
(i) without cause with fifteen (15) calendar days’ prior written notice to Supplier by Buyer; or
(ii) by either party thirty (30) days after written notice to the other party of breach or default of
any material obligations hereunder, which default has not been cured within said thirty (30)
calendar days after receipt of notice of such default or within such additional cure period as the
non-defaulting party may authorize in writing; or
(iii) effective immediately, in the event the other party becomes insolvent or is subject to similar
bankruptcy or reorganization proceedings under applicable law, or in the event of an
assignment or other arrangement for the benefit of the other party’s creditors.
Buyer shall retain any and all fully vested rights that exist on the effective date of this Contract’s
termination.
(b) Buyer also reserves the right to modify a PO or a Release hereunder, or suspend work or
shipments of all or any part of Products or Deliverables, without cause or default on the part of Supplier.
(c) In the event of any termination, modification or suspension by Buyer, Supplier shall
immediately stop all work under this Contract, cause any of its sub-suppliers and subcontractors to cease
such work, minimize charges related to the Products and/or Services and Deliverables, including diverting
materials to other uses, comply with any instructions from Buyer as to work in progress and take such
actions as may be necessary to protect Buyer’s property in the possession or control of Supplier or its
sub-suppliers and subcontractors. If Buyer’s termination, modification and/or suspension hereunder
without cause or default of Supplier causes additional cost to Supplier not due to Supplier’s fault or
neglect, a mutually agreeable adjustment may be made provided that a written claim (with adequate
supporting documentation) by Supplier is asserted within thirty (30) days from the date of termination or
modification or, in the case of a suspension, from the date of a start order for resumption of work. In no
event shall Buyer’s obligation hereunder exceed that which Buyer would have had to Supplier in the
absence of a termination, modification or suspension. Buyer shall not be obligated to purchase any
Supplier raw materials or to pay any Supplier termination charges. Buyer shall not be liable for any work
done after notice of termination, modification or suspension is given or for costs that reasonably could
have been avoided by Supplier or its sub-suppliers and subcontractors. Buyer shall not, by reason of the
termination, modification, suspension, expiration or non-renewal of this Contract, be liable to Supplier for
any damages or injunctive relief of any kind, including but not limited to, compensation, reimbursement or
damages on account of loss of prospective profits on anticipated sales, or on account of expenditures,
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investments, losses or commitments in connection with the business or goodwill of Supplier.
IN NO
EVENT SHALL BUYER BE LIABLE TO SUPPLIER FOR ANY CONSEQUENTIAL, INCIDENTAL,
PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS.
9.
DELIVERY:
(a)
Time is of the essence under this Contract. If Supplier for any reason anticipates that deliveries
will not be made as required, it shall immediately give Buyer written notice setting forth the cause(s) of the
anticipated delay. If delay or inability to perform arises from interruption of supply or scarcity of raw
materials or parts used by Supplier, Buyer’s orders shall be given priority in production scheduling. Buyer
reserves the right, without liability, to take any or all of the following actions if for any reason Supplier
does not substantially comply with its delivery obligations: (i) assess a late delivery fee of no more than
1.0% per day of the invoice amount of late deliveries of Products, (ii) submit a revised PO and/or MAS or
Release, (iii) terminate the PO, MAS or Release, or this Contract and purchase the Products elsewhere,
and Supplier shall be liable for any resultant loss, (iv) direct Supplier to ship by a method other than that
indicated in this Contract, work such overtime or do whatever is necessary to avoid the delay, and pay
any and all transportation charges, concessions to Buyer’s customers, liquidated damages, and any other
costs and expenses incurred by Buyer, or (v) seek specific performance of Supplier’s obligation to deliver.
(b)
Supplier shall use only Buyer-approved carriers and forwarders for transportation of Products
and/or Deliverables. Supplier shall reimburse Buyer for all costs and expenses incurred by reason of
shipment by an unapproved method or carrier.
(c)
Unless otherwise stipulated in writing, title to and risk of loss of the Products and/or
Deliverables shall pass to Buyer either (i) at Buyer’s dock (ship-to address), in the case of Products
and/or Deliverables that do not require export from their country of origin, or (ii) at the port of export, in the
case of Products and/or Deliverables that do require export from their country of origin, in each case upon
completion of unloading and tender of the Products and/or Deliverables (to Buyer or the export carrier, as
applicable), and Supplier shall bear the risk of loss until such delivery.
If the Products and/or Deliverables
are to be delivered in installments, title to each installment shall pass in the same way as provided in this
Contract.
(d)
The Products and/or Deliverables shall be suitably packed and/or protected for shipment and
transportation, the cost for which shall be borne by Supplier or Supplier’s representative. Each package
shall bear Buyer’s order number and be accompanied by a readily accessible packing note detailing the
contents and conforming with any applicable importation regulations. Failure of Supplier to comply with
the shipping and transportation instructions or to provide sufficient packing shall render Supplier liable for
any resulting damage and/or expense incurred by Buyer.
10.
FORCE MAJEURE:
Neither party shall be liable for any failure or delay in performance caused
by or due to acts of God, war, riot, terrorism, sabotage, accident or casualty. If Supplier is unable to
perform for more than thirty (30) days due to any such circumstances, Buyer may cancel this Contract
without penalty. Failure or delay due to labor strike or other form of work stoppage, delay of Supplier’s
sub-suppliers or subcontractors or scarcity of materials or parts shall not excuse Supplier’s performance.
11.
COMPLIANCE WITH LAWS:
(a)
Supplier shall comply with, and shall ensure that all of its sub-suppliers and subcontractors
comply with, all applicable laws and ordinances and all orders, rules, and regulations issued thereunder
(including anything required thereby to be included or incorporated by reference or operation of law in this
Contract). From time to time, at Buyer’s request, Supplier shall provide certificates to Buyer relating to
Supplier’s compliance with any applicable legal requirements or to update the representations,
warranties, certifications or covenants contained in this Contract, in each case in form and substance
satisfactory to Buyer.
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(b)
Supplier and all of its sub-suppliers and subcontractors shall comply with, and
acceptance of this Contract by Supplier shall be deemed a certification that Supplier
and all of its
sub-suppliers and subcontractors are in compliance with, any and all requirements imposed by
law, regulation or Executive Order upon prime contractors or subcontractors under
contract with
any governmental agency, including the Equal Opportunity Clause set forth in 41 CFR Chapter 60-
1.4(a), the Equal Opportunity Clause regarding Protected Veterans set forth in 41 CFR Chapter 60-
300.5(a), the Equal Opportunity Clause
regarding Workers with Disabilities set forth in 41 CFR
Chapter 60-741.5(a), and any other provisions of contractual clauses required by the OFCCP as
set forth in 41 CFR Chapter 60, as well as any Executive Orders as now or hereafter issued,
amended or codified which requirements are incorporated herein by reference. These regulations
prohibit discrimination against qualified individuals based on their status as protected veterans or
individuals with disabilities, and prohibit discrimination against all individuals based on their race,
color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these
regulations require that covered prime contractors and subcontractors take affirmative action to
employ and advance in employment individuals
without regard to race, color, religion, sex, sexual
orientation, gender identity, national origin, disability or veteran status.
By accepting or performing
this Contract, Supplier and all of its sub-suppliers and subcontractors certify in accordance with 41 CFR
Chapter 60-1.8 with respect to orders exceeding $10,000 and not otherwise exempt from the Equal
Opportunity Clause of 41 CFR Chapter 60-1.4(a) that they do not and will not maintain segregated
facilities or permit their respective employees to perform services at any location under their respective
contracts where segregated facilities are maintained, and that they will obtain similar certification before
the award of any non-exempt contract. Executive Order 13496 Compliance: Supplier agrees to comply
with the provisions of 29 CFR 471. Supplier further agrees to provide Disadvantaged Business
Enterprises (including but not limited to minority and women-owned businesses) utilization and
demographic data upon request. Where Products and/or Services and Deliverables being procured from
Supplier are in support of a United States Government end-user, Supplier agrees to comply with the
terms and conditions of the most current version of FAR 52.212-5(e) or 52.244-6 to the extent those
terms are applicable to “commercial off-the shelf” or “commercial Item” and as appropriate for the dollar
value of this Contract.
(c)
Supplier represents, warrants, certifies and covenants that Products and/or Services and
Deliverables will be produced and provided in compliance with the requirements of the Fair Labor
Standards Act of 1938, as amended.
(d)
Supplier represents, warrants, certifies and covenants that none of the Products
and/or
Services and Deliverables produced or supplied hereunder have been or will be produced or supplied (by
Supplier or its sub-suppliers or subcontractors) utilizing forced, indentured, convict or child labor or
utilizing the labor of persons in violation of the minimum working age law in the country of manufacture or
in any jurisdiction in which services are provided, or in violation of minimum wage, hour of service or
overtime laws of the country of manufacture or provided services.
(e)
Supplier represents, warrants, certifies and covenants that it has adopted policies and
established systems to procure tantalum, tin, tungsten and gold from sources that have been verified as
conflict free, and to provide to Buyer upon request supporting data regarding its supply chain for tantalum,
tin, tungsten, and gold, on a platform to be designated and/or provided by Buyer. Supplier further agrees
to report to Buyer any changes to the source, quantity or chemistry of any such material and to the use of
such material pursuant to the Change provisions set forth in Section 4(b) above.
(f)
Supplier shall comply with all laws concerning improper or illegal payments and gifts or
gratuities and agrees not to pay, promise to pay or authorize the payment of any money or anything of
value, directly or indirectly, to any person for the purpose of illegally or improperly inducing a decision or
obtaining or retaining business in connection with this Contract.
(g)
Supplier represents, warrants, certifies and covenants that it has established an effective
program to ensure that the activities of its sub-suppliers and subcontractors in regards to the Products
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and/or Services and Deliverables supplied or otherwise provided to Buyer hereunder will be in
compliance with Section 11(a)-(f) above and Section 12 below.
(h)
If Buyer determines that any of Supplier’s representations, warranties, certifications or
covenants contained in this Contract is incomplete or untrue, Buyer shall have the right to immediately
require Supplier to bring Products and/or Services and Deliverables into conformity with its
representations, warranties, certifications and covenants or, at Buyer’s sole option, to terminate this
Contract without further compensation to Supplier. In addition, Supplier shall compensate Buyer for any
damages suffered by Buyer as a result of any untrue or
incomplete representation, warranty, certification
or covenant of Supplier, or breach thereof hereunder by Supplier, and Supplier shall defend, indemnify,
release and hold harmless Buyer, its directors, officers, employees, agents, representatives, successors
and assigns, whether acting in the course of their employment or otherwise, against any and all suits,
actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments,
damages, costs, expenses, or liabilities resulting from or in any way connected with Supplier’s breach of
any of the representations, warranties, certifications or covenants contained in this Contract. Supplier
agrees to include this clause in any subcontracts issued hereunder. The provisions of this Section 11
shall survive any termination or expiration of this Contract.
12.
ENVIRONMENTAL, HEALTH, SAFETY AND SECURITY REQUIREMENTS:
(a)
Supplier represents, warrants, certifies and covenants that it shall perform all activities required
under this Contract in compliance with all applicable national, EU, state/provincial and local labor,
environmental, health and safety laws and regulations.
(b)
For all Products, Deliverables and other materials sold or otherwise transferred to Buyer under
this Contract, Supplier shall provide all relevant information including without limitation, safety data sheets
in the language and the legally required format of the location to which the Products and Deliverables will
be shipped and mandated labeling information, required pursuant to applicable requirements such as: (i)
Occupational Safety and Health Act (OSHA) regulations codified at 29 CFR 1910.1200, or (ii) Regulation
(EC) No 1907/2006 (“
REACH
”) or EU Directive 67/548/EC, as amended, if applicable, and (iii) any other
applicable law, rule or regulation, or any similar requirements in any other jurisdictions to which Buyer
informs Supplier the goods are likely to be shipped, whether or not the standard applies to the activities of
Supplier
.
(c)
Supplier represents, warrants, certifies and covenants that each chemical substance
constituting or contained in the Products and/or Deliverables sold or otherwise transferred to Buyer
(including packing) hereunder is on the list of chemical substances compiled and published by (i) the
Administrator of the Environmental Protection Agency pursuant to the Toxic Substances Control Act (15
USC Section 2601 et seq.) as amended; (ii) the European Inventory of Existing Commercial Chemical
Substances (EINECS) or the European List of Notified Chemical Substances (ELINCS); or (iii) any
equivalent lists in any other jurisdictions to which Buyer informs Supplier or Supplier knows the Products
and/or Deliverables will likely be shipped to or through; or that Supplier is exempt from the foregoing lists,
in which case Supplier shall provide adequate documentation of the validity of the claimed exemption.
Supplier further represents, warrants, certifies and covenants that each chemical substance constituting
or contained in Products and/or Deliverables sold or otherwise transferred to Buyer hereunder is
manufactured, imported, used and supplied in full compliance with the provisions of REACH, and is pre-
registered or registered, if required, under REACH, is not restricted under Annex XVII of REACH and if
subject to Authorization under REACH Annex XIV, is authorized for Buyer’s use. In each case, Supplier
will timely provide Buyer with supporting documentation, including without limitation, (iv) pre-registration
numbers for each such substance, (v) the exact weight by weight percentage of any REACH candidate
list substance constituting or contained in the Products, (vi) all relevant information that Buyer needs to
meet its obligations under REACH to communicate site use to its customers and (vii) the documentation
of the authorization for Buyer’s use of an Annex XIV substance.
(d)
Supplier shall notify Buyer if it decides not to register substances that are be subject to
registration under REACH and constitute or are contained in Products and/or Deliverables supplied to
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Buyer at least six (6) months before their registration deadline. Supplier will monitor the publication by
the European Chemicals Agency of the list of substances meeting the criteria for authorization under
REACH (the “
Candidate List
”) and immediately notify Buyer if any of the Products and/or Deliverables
supplied to Buyer is manufactured by Supplier with or contains a substance officially proposed for listing
on the Candidate List. Supplier shall provide Buyer with the name of the substance as well as with
sufficient information to allow Buyer to safely use the Product or fulfill its own obligations under REACH.
(e)
Supplier shall disclose to Buyer the existence of any and all hazardous materials contained in
Products, Deliverables and other materials sold or otherwise transferred to Buyer hereunder. Supplier
represents, warrants, certifies and covenants that none of the Products or Deliverables supplied under
this Contract contains any: (i) lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls
(PBBs), polybrominated diphenyl ethers (PBDEs) (flame retardants), or any other hazardous substances
the use of which is restricted under EU Directive 2002/95/EC (27 January 2003) (RoHS Directive), as
amended; (ii) arsenic, asbestos, benzene, polychlorinated biphenyls (PCBs), or carbon tetrachloride; (iii)
any chemical restricted under the Montreal Protocol on ozone-depleting substances; (iv) any substance
listed on the REACH candidate list, subject to authorization and listed on Annex XIV of REACH, or
restricted under Directive 76/769/EEC and when it shall be repealed, Annex XVII of REACH;
or (v) any
other chemical or hazardous material the use of which is restricted in any other jurisdictions to which
Buyer informs Supplier or the Supplier knows the goods are likely to be shipped to or through; unless
Buyer expressly agrees otherwise in writing as an addendum to this Contract and Supplier identifies an
applicable exemption from any relevant legal restriction on the inclusion of such chemicals or hazardous
materials in the Products or Deliverables sold or transferred to Buyer. Upon request from Buyer and
subject to reasonable confidentiality provisions which enable Buyer to meet its compliance obligations,
Supplier will provide Buyer with the chemical composition, including proportions, of any substance,
preparation, mixture, alloy contained in or incorporated into the Products and/or Deliverables supplied
under this Contract and any other relevant information or data regarding the properties including without
limitation test data and hazard information. Supplier also represents, warrants, certifies and covenants
that any substance contained in Products and/or Deliverables which is a “hazardous substance” as
defined under CERCLA, is produced in compliance with applicable state and federal requirements and
Occupational Safety and Health Act (OSHA) regulations.
(f)
Supplier represents warrants, certifies and covenants that, except as specifically listed in writing
as an addendum to this Contract, none of the goods supplied under this Contract are (i) subject to
electrical or electronic reuse or recycling take back requirements pursuant to applicable national law, or
(ii) contain batteries or accumulators or are batteries or accumulators subject to labeling or take back
requirements pursuant to applicable law.
(g)
Supplier represents that any wood packing or wood pallet materials are in compliance with the
import restrictions and treatment requirements of the United States Code of Federal Regulations, 7 CFR
319.40-1 through 319.40-11, as may be changed or amended, and the International Plant Protection
Convention Standards on Wood Packing Materials. Supplier shall provide Buyer with any certifications
required by Buyer to evidence such compliance.
(h)
Supplier also represents, warrants, certifies and covenants that it has developed and
implemented a company security and crisis management plan and procedures (“
Security Plan
”) that
provide for measures that ensure the physical integrity and security of all shipments against the
unauthorized introduction or harmful or dangerous materials in accordance with (i) the recommendations
of the United States Customs Service under the provisions of the Customs-Trade Partnership Against
Terrorism (“
C-TPAT
”) for Supplier’s type of business, (ii) the requirements or recommendations of the EU
Authorized Economic Operator (“
AEO
”) program, and (iii) any other governmental program for protection
of international supply chains in which Buyer does or may in the future participate. The Security Plan
shall include improvements in physical security, access control, procedural security, personal security,
awareness education and training. Supplier shall (iv) communicate C-TPAT security recommendations or
other relevant security recommendations to its sub-suppliers, subcontractors and transportation providers
and condition its relationship with those entities upon their implementation of a Security Plan, and (v)
upon request of Buyer, provide a written copy of the Security Plan. If Supplier is found not to be
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compliant with C-TPAT, AEO or any other relevant program, Supplier shall immediately take such steps
as required to be compliant and hold Buyer harmless and reimburse Buyer for all costs, losses, claims or
penalties charged to or imposed upon Buyer by reason of Supplier’s noncompliance.
(i)
Supplier represents, warrants, certifies and covenants that it has established an effective
program to ensure that the activities of any suppliers that it utilizes to provide any chemicals, substances,
mixtures, preparations, components, finished products or services that will be incorporated into the goods
or services supplied under this Contract will be conducted in conformance with this Section 12.
13.
BUYER POLICIES.
Supplier acknowledges that it has received a copy of the GE Integrity
Guide for Suppliers, Contractors and Consultants (the “
Guide
”), which Guide is available on Buyer’s
website at
http://www.gesupplier.com/html/SuppliersIntegrityGuide.htm
, and agrees that it will comply fully
with the Guide in the performance of this Contract. Where
Supplier Personnel (as defined in Section 37
below) will be on Buyer premises regularly, have access to Buyer’s network or Confidential Information
(as defined in Section 14 below), interact with governments of Buyer’s behalf or are otherwise in sensitive
positions, Supplier also agrees that it will: (a) provide a copy of the Guide to Supplier Personnel; (b)
instruct Supplier Personnel to comply with such documents; (c) be responsible for any failure of Supplier
Personnel to comply with such document; and (d) upon reasonable notice, cause its relevant Supplier
Personnel to attend and participate in compliance briefings conducted by Buyer representatives. As of the
date hereof and at all times during the term of this Contract, Supplier shall be in compliance with Buyer’s
supplier qualification standards and the Guide, as amended from time to time.
14.
INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIAL OR PROPRIETARY
INFORMATION:
(a)
No knowledge or information disclosed to Buyer by Supplier which in any way relates to
Products and/or Services and Deliverables shall, unless otherwise specifically agreed in writing by
Buyer, be deemed to be confidential or proprietary information, and Buyer shall acquire all such
knowledge and information free from any restrictions (subject to Supplier’s
patent rights), as part of the
consideration for this Contract and Buyer's MAS or Release.
(b)
Supplier agrees that the existence of this Contract, including the nature of the Products
and/or Services and Deliverables provided hereunder, as well as all information and material (which
includes all source and object code if any), any and all technical and other knowledge or information
obtained or learned by Supplier as a result of this buyer/supplier relationship, all technical and other
information furnished by Buyer or jointly developed by Buyer and Supplier, and all information and
material that Supplier develops under this Contract in the context of performing any Services and/or
providing any Deliverables hereunder (collectively, “
Confidential Information
”) shall remain Buyer's
property and Supplier shall maintain in confidence and safeguard all Confidential Information.
Supplier agrees to use any Confidential Information only for conducting business with Buyer in a
manner contemplated by this Contract.
(c)
Supplier shall restrict disclosures of any Confidential Information to only those Supplier
Personnel who have a need to know and shall bind such personnel to obligations of confidentiality
consistent with this Contract. Upon completion or termination of this Contract or upon request of the
Buyer, Supplier shall promptly return all materials incorporating any such Confidential Information and
any copies thereof.
Without waiving any other rights that Buyer may have, and notwithstanding
anything to the contrary herein, Buyer may immediately terminate with cause (with no right to cure)
this Contract upon written notice to Supplier in the event that Supplier, including any Supplier
Personnel, uses or discloses Buyer’s Confidential Information other than as expressly permitted in this
Section.
(d)
Supplier agrees and represents that all rights, title and interest in and to any programs,
systems, data, materials, drawings or any other property furnished or supplied to Supplier by or on
behalf of Buyer are and shall remain the property of Buyer and shall be returned to Buyer on the
termination or expiration of this Contract.
Upon request, Supplier shall provide to Buyer drawings,
9
specifications or other documentation evidencing the Products or Deliverables and/or all parts used in
manufacture of the Products or creation of Deliverables. Buyer shall have no obligations of
confidentiality with respect to said documentation unless otherwise agreed in a separate writing signed
by both parties.
(e)
Supplier further agrees and represents that Supplier shall comply with, and cause all
Supplier Personnel to comply with, all applicable Buyer information technology guidelines and
encryption requirements in accessing Buyer networks and in transmitting data electronically into Buyer
networks in order to preserve and protect the integrity of Buyer systems and/or Buyer Confidential
Information. Failure by Supplier to comply with the obligations set forth herein is considered a material
breach of this Contract. Buyer reserves the right to conduct at any time, subject to a prior written
notice, an on-site verification of Supplier’s compliance with obligations relating to the requirements
contained in this Section 14(e), and Supplier shall provide access to all concerned facilities, equipment
and records in order to conduct such verification.
15.
PUBLICATION:
Without Buyer's prior written consent, Supplier shall not advertise, promote
or publish the fact that Buyer has contracted to purchase Products, Services or Deliverables from
Supplier, disclose information relating to this Contract, publicly identify Buyer as a customer of
Supplier, or use the name of Buyer or any of Buyer’s customers in advertising or any other
publications or on any websites.
16.
IMPORTS:
(a)
Unless otherwise specifically provided by Buyer in writing, Buyer shall be Importer of
Record.
(b)
Supplier warrants and covenants that all sales made hereunder are and shall be made in
circumstances that will not give rise to the imposition of anti-dumping or countervailing duties under
United States law (19 U.S.C. § 1671), European Union (Council Regulation (EC) No. 384/96 of
December 22, 1995, Commission Decision No. 2277/96/ECSC of November 28, 1996), similar laws in
such jurisdictions or any other country to which the Products may be exported, as currently in force or
as may be amended. To the full extent permitted by law, Supplier shall indemnify, defend and hold
Buyer harmless from and against any costs or expenses (including but not limited to any
countervailing and/or dumping duties which may be imposed and, to the extent permitted by law, any
preliminary dumping duties that may be imposed) arising out of or in connection with any breach of the
above warranty
(c)
If Supplier is Importer of Record, Supplier agrees that Buyer will not be a party to the
importation of Products or Deliverables, that the transaction(s) contemplated by this Contract will be
consummated subsequent to importation, and that Supplier will neither cause nor permit Buyer's name
to be shown as "importer of record" on any customs entries or declarations. Upon request and where
applicable, Supplier will provide Buyer with all documents and properly executed forms as required by
U.S. export control laws and regulations and will further provide all commercial invoices in proper form
to allow Buyer to apply for and receive duty drawback. Supplier will not disclose any information
regarding Buyer and/or Products contrary to export control laws and regulations of the U.S.
(d)
Supplier shall provide, in a timely, complete and accurate manner, to Buyer or Buyer’s
designated agent, all data required to enable Buyer’s compliance with the U.S. Customs Importer
Security Filing and additional Carrier Requirements regulation, 19 C.F.R. Part 149 (the “
ISF Rule
”) for
all of Supplier’s ocean shipments of Products and/or Deliverables to Buyer destined for or passing
through a United States port, including without limitation, the timely, complete and accurate provision
of the ISF-10 Elements thereunder. Supplier shall indemnify and hold harmless Buyer, its directors,
officers, employees, agents, representatives, successors and assigns from and against any and all
actions or proceedings, at law or in equity, and from and against any and all claims, demands, losses,
judgments, damages, costs, fines, expenses or liabilities resulting from or in any way connected with
10
Supplier’s breach of its obligations under this Section 16(d). The provisions of this Section 16 shall
survive any termination or expiration of this Contract.
17.
FOREIGN TRADE ZONE:
If Buyer and Supplier agree to operate from any Foreign Trade
Sub-Zone established by Buyer, any benefit arising from operation in such Foreign Trade Sub-Zone
will inure to Buyer, and both parties will cooperate and adopt procedures designed to capture and
maximize such benefit. Supplier shall be reimbursed immediately for any reasonable additional
expense incurred to capture and maximize such benefit for Buyer.
18.
INDEMNIFICATION AND INSURANCE:
(a)
Supplier shall release, defend, hold harmless and indemnify Buyer (who shall control its own
defense), its affiliates and its/their respective directors, officers, employees, representatives,
successors, assigns, distributors, dealers, affiliates, customers and all other users of the Products
and/or Services and Deliverables during the term of this Contract and thereafter, from
and against any
and all actual or alleged claims, demands, losses, judgments, damages, costs, expenses or liabilities
(including attorney fees, overhead and court costs), including without limitation claims for death,
personal injury, or property damage, resulting from, arising out of or in any way connected with any
act, failure to act, neglect or omission of Supplier or Supplier Personnel during the performance of this
Contract, including without limitation: (i) breach of any Supplier representations or warranties
hereunder; (ii) any failure of Products and/or Services and Deliverables to comply with applicable
specifications (functional, design or otherwise), requirements or certifications hereunder; (iii) the
negligence, willful misconduct or other tortious conduct of Supplier or Supplier Personnel in design,
manufacture or otherwise with respect to Products or Deliverables or parts therefor, in Services
rendered hereunder or otherwise in connection herewith; (iv) claims based on strict or product liability
relating to Products and/or Deliverables; (v) failure to warn or inadequate warnings or instructions; (vi)
failure of Products
and/or Deliverables to perform in accordance with their intended use; and (vii) (A)
representations or statements of Supplier or Supplier Personnel to third parties on behalf of Buyer not
specifically authorized by Buyer in this Contract nor otherwise authorized in advance and in writing by
Buyer, and (B) a violation by Supplier or Supplier Personnel of any applicable law, regulation or order.
Buyer reserves the right to settle all such claims at its own expense, but such settlement shall not
relieve Supplier from any of its liabilities under this Contract. Supplier agrees to include this clause in
all related subcontracts. Upon Buyer’s request, Supplier shall advance all attorneys’ fees and other
dispute resolution expenses related to any indemnified claim. The provisions of this Section 18 shall
survive the termination or expiration of this Contract.
(b)
For the duration of this Contract and for a period of six (6) years from the date of provision of
the Products and/or Services and Deliverables, Supplier shall maintain, through insurers with a
minimum A.M. Best rating of A-VII or S&P A or the equivalent in those jurisdictions that do not
recognize such rating classification and licensed in the jurisdiction where Products and Deliverables
are sold and/or where Services are performed, the following insurance: (i) Commercial General/Public
Liability, on an occurrence form, in the minimum amount of USD $5,000,000.00 per occurrence with
coverage for: (1) bodily injury/property damage; (2) personal/advertising injury; and (3)
products/completed operations liability, including coverage for contractual liability insuring the liabilities
assumed in this Contract, with all such coverages in this Section 18(b) applying on a primary basis,
providing for cross liability, not being subject to any self-insured retention and being endorsed to name
General Electric Company, its affiliates, directors, officers, agents and employees as additional
insureds; (ii) Business Automobile Liability Insurance covering all owned, hired and non-owned
vehicles used in the performance of this Contract in the amount of USD $2,000,000.00 combined
single limit each occurrence; (iii) Employers’ Liability in the amount of USD 3,000,000.00 each
accident, injury or disease; (iv) Property Insurance on an “All risk” basis covering the full replacement
cost value of all of Buyer’s property in Supplier’s care, custody or control, with such policy being
endorsed to name Buyer as “Loss Payee” as its interests may appear; (v)
if Supplier will have access
to Buyer’s funds or accounts, Crime Insurance (also known as Employee Dishonesty insurance /
Fidelity Bond) in an amount of not less than $1,000,000 covering all Supplier Personnel and including
a Client’s Interest endorsement or Insuring Agreement specifying that coverage extends to
Buyer’s
11
property in the event of any theft of Buyer money or property, or money or property of others for which
Buyer is responsible; and (vi) appropriate Workers’ Compensation Insurance protecting Supplier from
all claims under any applicable Workers’ Compensation or Occupational Disease Act. Supplier shall
obtain coverage similar to Workers’ Compensation and Employers’ Liability for each Supplier
employee performing work under this Contract outside of the U.S. To the extent that this Contract is
for professional Services, Supplier shall maintain Professional Errors and Omission Liability insurance
in the minimum amount of $5,000,000.00 per claim; if Supplier will have access to Buyer’s IT systems
or restricted data, coverage must also include loss of and/or mishandling of data containing private or
confidential information of Buyer or others for which Buyer is responsible, and failure to prevent
unauthorized access to, or use of, Buyer’s systems or data.
If the scope of Services involves the
potential for an environmental release, Supplier shall maintain Environmental Impairment (also known
as Pollution) Liability with a limit of not less than $10,000,000 per occurrence covering on-site and off-
site bodily injury and property damage, including clean-up cost as a result of pollution conditions
arising from the Supplier’s operations, including completed operations. If coverage is provided on a
claims-made form, the retroactive date must precede the effective date of this agreement and provide
for continuity in cover for (1) year after the completion of the Services If any insurance is on a claims-
made basis, the retro date must precede the date of issuance of this Contract and Supplier must
maintain continuity of coverage for three (3) years following termination, expiration and/or completion
of this Contract. Insurance specified in sub-sections 18(b)(i), (ii) and (iii) shall be endorsed to provide a
waiver of subrogation in favor of Buyer, its affiliates and its and their respective employees for all
losses and damages covered by the insurances required in such subsections. The application and
payment of any self-insured retention or deductible on any policy carried by Supplier shall be the sole
responsibility of Supplier. Should Buyer be called upon to satisfy any self-insured retention or
deductible under Supplier’s policies, Buyer may seek indemnification or reimbursement from Supplier
where allowed by Law. Upon request by Buyer, Supplier shall provide Buyer with a certificate(s) of
insurance evidencing that the required minimum insurance is in effect. The certificate(s) of insurance
shall reference that the required coverage extensions are included on the required policies. Upon
request by Buyer, copies of endorsements evidencing the required additional insured status, waiver of
subrogation provision and/or loss payee status shall be attached to the certificate(s) of insurance.
Acceptance of such certificate(s), which are not compliant with the stipulated coverages, shall in no
way whatsoever imply that Buyer has waived its insurance requirements or any other obligations set
forth herein. The above-referenced insurance limits in subsections (i), (ii) and (iii) can be met either
via each policy or via a combination of these policies and an excess/umbrella liability insurance policy..
19.
NON-ASSIGNMENT:
Supplier shall not assign this Contract or any interest, right or obligation
created hereby or any payment due or to become due hereunder without Buyer's written consent. Any
attempt by Supplier to make such assignment (or any such assignment by operation of law) shall be
null and void.
Subject to the foregoing, this Contract shall be binding upon and inure to the benefit of
the Parties’ respective successors and assigns.
20.
INTELLECTUAL PROPERTY WARRANTY AND INDEMNITY:
Supplier warrants that
Products and/or Services and Deliverables provided hereunder, and Buyer’s use, possession, or
import of such Products and/or Services and Deliverables, do not infringe any patent, copyright,
trademark or other intellectual property right of any third party. Supplier shall hold Buyer harmless
against and handle, defend or settle any claim, demand, suit or proceeding brought against Buyer or
Buyer’s customers and other users of Products and/or Services and Deliverables
that is based on an
allegation that any article, apparatus, material, component or part thereof constituting Products and/or
Services and Deliverables, as well as any article, device or process resulting from the intended use
thereof or any process or method furnished by Supplier for making or using Products and Deliverables
and/or performing Services, constitutes an infringement of any patent, trademark, copyright or other
intellectual property right, and Supplier shall pay all damages and costs awarded therein or all costs
incurred and payment due in settlement thereof, including but not limited to any royalties due for the
continuing purchase of, or use of Products and Deliverables from
and/or the performance of Services
by Supplier. If any article, apparatus, material, component or part thereof, or any device or process
necessarily resulting from the use thereof or process or method for using Products and/or Services
and Deliverables, is held in such suit or proceeding to constitute infringement or misappropriation and
12
the manufacture, sale or use of the article, apparatus, material, component, part, device, process or
method is enjoined, Supplier shall, at its own expense and at Buyer’s option, either procure for Buyer
or Buyer’s customers and other users the right to continue making, using or selling the article,
apparatus, material, component, part, device, process or method, or if the form, fit, function or
performance thereof will not be materially adversely affected, replace same with a non-infringing
article, apparatus, material, component, part, device, process or method, or modify it so it becomes
non-infringing, or remove the article, apparatus or material or component and refund the purchase
price and the transportation and installation costs thereof. The provisions of this Section 20 shall
survive the termination or expiration of this Contract.
21.
PRICING:
Unless otherwise agreed in writing, the prices specified in this Contract are prices
for all Products and Services and/or Deliverables ordered under this Contract, inclusive in the case of
Products of the packaging for exportation or delivery in full container load quantities of such Products
and any taxes and duties imposed on and/or payable by Supplier. No additional charges of any kind,
including charges or expenses incurred in connection with boxing, containerization, cartage or other
transportation or insurance will be allowed.
22.
PAYMENTS:
(a)
Payment by Buyer will be made following issuance of a PO and acceptance of the Products
and/or Services and Deliverables ordered thereunder by Buyer, and, where applicable, receipt of
Supplier’s invoice. For purposes of Products that are equipment, “acceptance” shall mean that the
equipment is installed in Buyer’s plant and meets all applicable contractual terms. Unless Buyer
directs otherwise, if Supplier is required to submit an invoice for payment, Supplier shall use Buyer’s e-
Invoicing system on SupplierNet. Supplier hereby represents that its wire or electronic funds transfer
and other payment instructions shall comply with all applicable banking and currency control laws,
rules and regulations. If payment is to be made by means of wire or electronic funds transfer, then
such transfer will be initiated within the agreed payment terms. The terms and conditions of Buyer’s
EFT Payment and Implementation as in effect from time to time are incorporated herein by reference
and shall govern such electronic funds transfers for Products and/or Services and Deliverables.
(b)
In addition to any other rights that Buyer may have under this Contract, Buyer may charge
Supplier if Supplier fails to submit accurate invoices, reports or other documents or data required by
Buyer. The intent of these charges is to reimburse Buyer for the additional out-of-pocket costs
associated with auditing and otherwise correcting or accommodating Supplier’s failure to comply with
the requirements of this Section. Such payments are intended as a good faith defrayal by Supplier of
Buyer’s additional costs and not as a waiver of or substitute for the
payment of any damages or
indemnity otherwise provided under this Contract.
EACH PAPER INVOICE RECEIVED BUT NOT
APPROVED BY ACCOUNTS PAYABLE SHALL BE ASSESSED A PROCESSING FEE OF $100
OR LESS. Buyer shall have no obligation to pay for Products, any installation of Products, if
applicable, or Services or Deliverables if Buyer receives required invoices more than six
months after Supplier is required to submit such invoices or if relevant accounts cannot be
reconciled within six months of receipt of Products and/or Services and Deliverables due to the
fault of Supplier. Except as time barred under any applicable statute of limitations of lesser
duration, any claims by Supplier shall be time barred unless Supplier commences an
arbitration proceeding with respect to such claim within two (2) years after the cause of action
has accrued.
(c)
If Supplier receives payment hereunder earlier than the ordinary net date in exchange for a
discount, the following provisions shall apply:
Buyer has assigned its right, title and interest in this
Contract and the related Products and/or Services and Deliverables to General Electric Capital
Corporation ("
GE Capital
"). After title to the Products
and/or Deliverables has passed to GE Capital,
GE Capital shall assign its right, title and interest to the Products
and Services and/or Deliverables and
this Contract to Buyer. All warranties, either express or implied, provided with respect to the
Products
and/or Services and Deliverables shall be retained by Buyer. Supplier remains obligated to perform all
13
of its obligations under this Contract notwithstanding these assignments and Buyer may rely upon the
same.
23.
PRODUCT RECALL:
If at any time (a) any governmental agency having jurisdiction provides
written notice to either Buyer or Supplier, or (b) either Buyer or Supplier have a reasonable basis to
conclude that any Products or Deliverables contain a defect which could create a potential safety
hazard or unsafe condition, pose an unreasonable risk of serious injury or death, contain a quality or
performance deficiency, or are not in compliance with any applicable code, standard or legal or
regulatory requirement, thereby making it advisable, or required, that such Products or Deliverables be
subject to corrective action including, without limitation, recall, retrofit, refund, replacement and/or
repair (hereinafter “
Corrective Action
”), Supplier or Buyer will promptly communicate relevant facts to
each other. Buyer shall determine whether any Corrective Action involving the affected Products or
Deliverables is warranted or advisable unless notice to that effect has been received from any
governmental agency having jurisdiction. If Corrective Action is required under the law or Buyer
determines that it is advisable, Supplier shall promptly undertake Corrective Actions, including those
required by any applicable consumer product safety or similar law and the regulations thereunder, and
shall file all necessary papers, descriptions of corrective action, and other related documents and carry
out the Correction Action. Buyer shall cooperate with and assist Supplier in any such filings and
Corrective Action; provided, however, that nothing contained in this Section shall preclude Buyer from
taking such action, and in such event, Supplier shall cooperate with and assist Buyer in any such
filings and implementing the Corrective Action it elects to undertake. To the extent the need for such
Corrective Action is determined to have been caused by a defect, noncompliance or quality or
performance deficiency which is the responsibility of Supplier, at Buyer’s election, Supplier shall
perform all necessary Corrective Action at its sole expense, or Buyer shall perform such necessary
Corrective Action and Supplier shall reimburse Buyer for all reasonable out-of-pocket costs and
expenses incurred by Buyer in connection therewith. In either case, Supplier shall reimburse Buyer for
all reasonable out-of-pocket costs and expenses incurred by Buyer in connection with any such
(voluntary or mandatory) Corrective Action, including without limitation, the cost of locating, identifying
and notifying Buyer’s customers, the cost of repairing, or where repair of the Product or Deliverables is
impracticable or impossible, repurchasing or replacing the recalled Product or Deliverable, any costs
of packing and shipping the recalled Product or Deliverable, and the cost of media notification, if such
form of notification is necessary.
The parties recognize that it is possible that other Supplier-provided
products or deliverables might contain the same defect, noncompliance or quality or performance
deficiency as do Products or Deliverables provided to Buyer. Buyer and Supplier agree that any
Corrective Action involving Products or Deliverables provided to Buyer shall be treated separately and
distinctly from similar Corrective Action of other products or deliverables of Supplier; provided that
such separate and distinct treatment is lawful and Supplier shall in no event fail to provide at least the
same protection to Buyer on such Products or Deliverables as Supplier provides to its other customers
in connection with similar Corrective Action. Each party shall consult the other before making any
statements to the public or a governmental agency relating to potential safety hazards affecting
Products or Deliverables, except where such consultation would prevent timely notification required by
law. The provisions of this Section 23 shall survive any termination or expiration of this Contract.
24.
RECORDS AND AUDITS:
Buyer has the right at any reasonable time and upon reasonable
notice to verify any data Supplier has prepared or submitted under this Contract, including financial
information of Supplier, its sub-suppliers and subcontractors, and its affiliates. Supplier shall supply
financial information reasonably requested by Buyer.
25.
INSPECTIONS AND REJECTIONS:
(a)
All Products and/or Services and Deliverables covered by this Contract shall be received
subject to Buyer’s right of inspection, count, testing and rejection. Such right shall be extended to
Buyer’s customers. Payment for Products and/or Services and Deliverables delivered hereunder shall
not constitute acceptance thereof, and all payments against documents shall be made with a
reservation of rights by Buyer for defects in Products
and/or Services and Deliverables or documents,
including, without limitation, defects apparent on the face thereof. Supplier shall provide and maintain
14
inspection and process control systems acceptable to Buyer for production of the Products and/or
performance of the Services and provision of the Deliverables. Records of all inspections by Supplier
shall be kept complete and available to Buyer during the performance of this Contract or for such
longer period as may be required by law. Buyer may inspect Products and/or Deliverables at
Supplier’s plant and any other place of manufacture or production at any time without waiving its right
subsequently to reject or revoke acceptance of such Products and/or Deliverables for any defects.
Failure of Buyer to inspect shall not relieve Supplier from any of its responsibilities hereunder.
Supplier, at its expense, shall furnish, or cause to be furnished, facilities and assistance reasonably
necessary to ensure the safety and convenience of any such inspections.
(b)
If any of the Products and/or Services and Deliverables are found at any time to be defective
in design, materials or workmanship or otherwise to be not in conformity with the requirements of this
Contract, including any applicable specifications, samples, drawings, designs, plans, instructions,
statements of work or delivery dates, Buyer, in addition to such other rights as it may have under this
Contract, at law and/or in equity, at its option may: (i) reject and return such Products and/or
Deliverables at Supplier’s expense; (ii) require Supplier at its expense to replace the rejected Products
and/or Deliverables and/or re-perform the Services under a revised MAS or Release submitted by
Buyer; or (iii) require Supplier to inspect Products and/or Services and Deliverables and remove and
replace nonconforming Products and/or Deliverables with conforming Products and/or Deliverables,
and/or re-perform the Services to conform with this Contract. Buyer may at its option inspect, sort,
remove, correct and replace such Products and/or Services and Deliverables and Supplier shall pay
the actual cost thereof. If any Products
and/or Services and Deliverables are rejected, Buyer may
deduct from the current invoice of Supplier the cost of rejected Products and/or Services and
Deliverables. Buyer may also charge to Supplier all direct and indirect costs incurred by Buyer as a
result of any nonconforming Products and/or Services and Deliverables whether or not Buyer rejects
such Products and/or Services and Deliverables. Buyer will itemize such costs to Supplier, which may
include, but not be limited to, cost of defective materials, a 15% handling charge, transportation
charges, incidental material and labor costs, sorting and rework expenses, lost production starts
directly caused by the defect(s) (including late delivery), or any other ascertainable costs creating a
loss to Buyer.
26.
QUALITY:
(a)
At all times, Supplier and the Products and/or Deliverables shall meet the requirements
specified in Buyer’s Supplier Quality Policy, which is available on Buyer’s iSupplier website and
incorporated herein by reference.
(b)
Products and/or Deliverables delivered by Supplier shall meet Buyer’s standard quality
levels including maintaining Parts Per Million (“
PPM
”) rejection levels of 5,000 or less. If Supplier fails
to deliver the required PPM levels on a rolling three (3) month average, Buyer shall have the right,
commencing on any occurrence of such failure and continuing until such time as acceptable PPM
levels are again achieved (the “
Excessive PPM Level Period
”), to apply a 2% discount to Products
and/or Deliverables produced during an Excessive PPM Level Period. For the purpose of this
paragraph, PPM shall mean the incidental part per million rejection rate for Products and/or
Deliverables which is determined by taking the product of (a) the sum of the incoming and line
rejections, divided by the total receipts and (b) one million.
Supplier shall log onto SupplierNet and
submit real time production SPC data from the CTQ or additional process measurements as
determined by Buyer’s Purchased Material Quality organization for the duration of a Product’s
and/or
Deliverable’s production life. Supplier’s failure to submit required data may result in Buyer withholding
up to two percent (2%) of the price of the Products and/or Deliverables received until such data is
input into the Supplier Process Quality system.
(c)
In the event of an Excessive Failure, as defined below, Supplier shall reimburse Buyer for its
documented costs incurred in investigating, repairing or replacing affected Products and/or
Deliverables. An “
Excessive Failure
” will have occurred in the case of any Product and/or
Deliverable, if during the longer of the customer warranty period on the Product and/or Deliverable or
15
of the appliance, fixture, or system
(“
Appliance
”) constituting or containing such Product and/or
Deliverable, the Service Call Rate, as determined below, for a particular Product and/or Deliverable
part number constituting or contained in the Appliance manufactured within a particular production
quarter exceeds one-half percent (0.5%). The Service Call Rate for a particular Product and/or
Deliverable constituting or contained in a Appliance will be calculated by computing the quality
percentage equal to (i) the actual number of customer service calls concerning the Product and/or
Deliverable for a given quarter of manufacture of the Appliance divided by (ii) the total number of
Appliances constituting or containing the specific Product and/or Deliverable produced during the
same quarter of manufacture.
Customer service calls resulting from (iii) unforeseeable misuse, abuse,
negligence or accident, (iv) improper installation, service or maintenance, (v) transportation of
Products and/or Deliverables by Buyer; (vi) improper storage of Products and/or Deliverables by
Buyer; or (vii) defective designs owned by Buyer shall not be included in the calculation of the Service
Call Rate. The provisions of this Section 26(c) shall survive any termination or expiration of this
Contract.
(d)
Buyer and Supplier shall cooperate and consult in the qualification of Products
and/or
Deliverables. Supplier shall produce an agreed upon number of Product and/or Deliverable samples,
which Buyer shall evaluate in accordance with criteria used by Buyer in its commercial operations or
developed by Buyer for use in connection with the Products and/or Deliverables. At Buyer’s request, all
data and documentation produced from compliance and reliability testing shall be submitted to Buyer for
review. Supplier shall maintain, for the period of production of the Products and/or Deliverables
hereunder, and for a period of two (2) years after production of a Product and/or Deliverable has ceased,
and shall make available to Buyer within forty-eight (48) hours of Buyer’s request, any and all data and
documentation produced from energy, compliance and reliability testing, including without limitation, test
data associated with tests performed to satisfy the requirements of the U.S. Department of Energy. Such
data and documentation shall be indexed in such a fashion as to make it readily accessible for review by
Buyer. Supplier shall also provide Buyer copies of any and all certification reports submitted to the DOE,
as well as to the Federal Trade Commission, EnergyStar and California Energy Commission,
simultaneously with the filing of such reports with such agencies or entities. Buyer shall advise Supplier
in writing if the Product samples meet its criteria, at which time the Product and/or Deliverable shall be
qualified for sale under this Contract, and the associated design, specifications and tolerances relating
thereto shall become the quality procurement specifications (“
QPS
”) for such Product and shall be
documented in writing and be included as part of the Product specifications. Buyer shall have no
obligation to purchase any Product until the Products are qualified pursuant to the above process.
27.
SUPPLIER
AND SUPPLIER PERSONNEL:
Supplier’s relationship and that of Supplier
Personnel to Buyer in performance of this Contract shall be that of independent contractor and not as
an agent, servant or employee of Buyer. Supplier and Supplier Personnel shall comply with all rules,
including safety, traffic and security, established by Buyer for operations within Buyer's location(s).
28.
SET-OFF:
Buyer shall have the right at all times to set off any amounts owing at any time
from Supplier to Buyer, any unincorporated component of Buyer or any of its affiliates, against any
amount payable at any time by Buyer to Supplier.
29.
SUBCONTRACTING:
The parties recognize that the nature of the work of Supplier may
require Supplier to procure materials and/or services from third parties; however, should Supplier elect
to subcontract any work under this Contract, it shall subcontract only after obtaining Buyer's prior
written consent. Any action taken by Supplier in contravention of the foregoing is hereby deemed null
and void.
Any consent so granted by Buyer shall not relieve Supplier of its obligations hereunder, and
Supplier shall remain entirely responsible for Supplier’s performance of all Services and delivery of all
Products and Deliverables, as well as compliance with all other terms of this Contract. No contract or
agreement shall be created or construed to exist between Buyer and Supplier’s sub-suppliers or
subcontractors as a result of such consent.
If Buyer consents to the use by Supplier of subcontractors
hereunder, such subcontractors shall be engaged by Supplier under terms and conditions no less
restrictive than those set forth herein, and Supplier shall ensure that each subcontractor has obtained
and maintains all licenses required in connection with this Contract. As used herein, “
sub-supplier
”
16
means any individual, firm, corporation or other third party engaged directly or indirectly by Supplier in
any part of the delivery of Products, and “
subcontractor
” means any individual, firm, corporation or
other third party engaged directly or indirectly by Supplier in
any part of the performance of the
Services and/or delivery of Deliverables, in each case including any individual, firm or other entity
furnishing materials and/or services necessary for the performance of Supplier’s obligations under this
Contract.
30.
WARRANTIES:
(a)
Notwithstanding any other provision in this Contract, Supplier represents and warrants as
follows:
(i)
all Products and Deliverables will be free of any lien, encumbrance, or claim of any
nature by any third party and Supplier will convey clear title thereto to Buyer;
(ii)
all Products and Deliverables sold to Buyer will be new and of merchantable quality, fit
for Buyer’s particular purpose(s) and will contain new parts and components and be free
from all defects, whether latent or patent, in design, workmanship and materials, and
shall comply with all applicable national, state and local laws. Supplier further warrants
that all Products and Deliverables will strictly conform to all specifications, samples,
drawings, designs, plans, instructions, statements of work
or other requirements
(including functional performance specifications) furnished, approved or adopted by
Buyer;
(iii)
all Services shall be performed by qualified individuals in a professional and
workmanlike manner conforming to the highest industry standards and practices in a
timely manner and in accordance with generally accepted practices and professional
standards used by internationally recognized providers performing services similar to
the Services hereunder;
(iv)
Supplier has the legal right to provide all of the Products and/or Services and
Deliverables hereunder;
(v)
all Products and/or Services and Deliverables shall comply with any and all applicable
federal, state, commonwealth, county and local, including those of any foreign country,
laws and ordinances and all lawful orders, decrees, rules, regulations, codes and other
requirements issued thereunder (hereinafter collectively referred to as “
Legal
Requirements
”), including Legal Requirements to provide a safe and healthy
workplace, to protect local environmental quality, to comply with applicable privacy or
data protection laws of any country where work relating to this Contract is performed,
and compliance with export control laws and regulations of the United States and of any
foreign country;
(vi)
the Services supplied under this Contract will not be provided utilizing forced, indentured
or convict labor or utilizing the labor of persons in violation of the tax, immigration or
minimum working age law in the country where the Services are being carried out, or in
violation of minimum wage, hour of service, or overtime laws of the country where the
Services are being carried out;
(vii)
Supplier is in full compliance with the Immigration Reform and control Act of 1986, as
amended, and that it will only provide Buyer with Supplier Personnel whose employment
eligibility has been verified; that it is in full compliance with all applicable laws relating to
equal employment opportunity; and that it has implemented appropriate “revolving door”
and conflict of interest screening mechanisms, and that its employees are in full
compliance with all related regulations and laws, including but not limited to, 5 C.F.R.
Sect. 2635 et. Seq., 18 U.S.C. Sec. 204, 207 and 208, and FAR Subpart 3.104 et seq.;
17
(viii)
Supplier has not engaged in any sharing or exchange of prices, costs or other
competitive information or undertaken any other collusive conduct with any third party
supplier or bidder in connection with the preparation of any bid or proposal to Buyer or
negotiation of this Contract;
(ix)
except as otherwise agreed by Buyer in writing, no software constituting or contained in
Products and/or Services and Deliverables supplied to Buyer hereunder is subject to or
distributed under any license, other agreement or understanding, that: (i) would require
the distribution of source code with the software of any Product, Service or Deliverable
into which it is or becomes incorporated, or which would require source code to be
made available when such is distributed to any third party; (ii) would impact, restrict or
impair in any way Buyer’s ability to license such software pursuant to terms of Buyer’s
choosing; or (iii) would impact or limit Buyer’s ability to enforce Buyer’s patent or other
intellectual property rights against any third party in any manner (a “
FOSS License
”).
Supplier represents and warrants it has not modified any software or other component
that is subject to a FOSS License. Supplier will not incorporate any software or other
component subject to a FOSS License into the software constituting or contained in
Products and/or Services and Deliverables supplied to Buyer hereunder, including by
virtue of embodiment of background software into such software other than as expressly
approved in writing in advance by Buyer; and
(x)
the Products and/or Services and Deliverables (A) do not and will not contain any
restrictive devices such as any key, node lock, time-out, time bomb, or other function,
whether implemented by electronic, mechanical or other means which may restrict or
otherwise impair the operation or use of the Products and/or Services and Deliverables
or any material embodying or comprising Products and/or Services and Deliverables;
and (B) shall be free of viruses and other harmful code (including, without limitation,
time-out features) which may interfere with the use of the Products and/or Services and
Deliverables regardless of whether Supplier or Supplier Personnel purposefully placed
such code in the Products and/or Services and Deliverables. In addition to exercising
any of Buyer’s other rights and remedies under this Contract or otherwise at law or in
equity, Supplier shall provide Buyer, free of charge, with any and all new versions,
upgrades, updates, releases, maintenance releases and error or bug fixes of the
Products and/or Services and Deliverables (collectively, “
Revised Code
”) that prevents
a breach of any of the warranties provided under this Contract or corrects a breach of
such warranties. Revised Code contained in Products and/or Services and Deliverables
constitutes Products and/or Services and Deliverables for purposes of this Contract.
(b)
The foregoing warranties shall survive Buyer’s inspection, acceptance, sale and use of the
Products and/or Services and Deliverables. The warranties and remedies contained in this Section
shall be in addition to, and shall not be construed as restricting or limiting, any warranties or remedies
of Buyer, express or implied, which are provided by contract or law.
(c)
In the event that any Products and/or Services and Deliverables do not conform to any of
the foregoing warranties, Supplier at its sole expense and at Buyer’s option shall promptly repair or
replace such Products and Deliverables and/or re-perform such Services and reimburse Buyer for
losses, injuries, remedial costs and other direct damages resulting from such non-conformance. In the
event of Supplier’s failure to do so, Buyer may make such repair or replacement or have the service
re-performed at Supplier’s expense, after notice to Supplier. Any Products or Deliverables repaired or
replaced or Services re-performed under this provision shall be warranted as provided herein.
(d)
Supplier hereby extends to Buyer any and all warranties received from Supplier’s sub-
suppliers and subcontractors and agrees to enforce such warranties on Buyer’s behalf. All of
Supplier’s warranties shall run collectively and separately to Buyer, its successors, assigns, customers
and users of Products and/or Deliverables sold by Buyer.
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(e)
Any claim by Buyer under this Section (or any other provision of this Contract), shall be
asserted through a notice of arbitration filed within four (4) years after the cause of action has accrued.
31.
RELIANCE ON CERTAIN SUPPLIER FURNISHED INFORMATION:
Supplier acknowledges
and agrees that Buyer will use and rely upon the specifications, drawings and other information
furnished by Supplier to Buyer in developing and printing labels and other packaging (including
packing slips and Customs and other governmental declarations) and selling material. Supplier will
indemnify and hold Buyer harmless from any and all costs and damages suffered by Buyer as a result
of any inaccuracies in any information furnished to Buyer by or on behalf of Supplier that Buyer uses
or relies upon in designing or printing Buyer’s labels and other packaging and selling material.
32.
DISPUTE RESOLUTION:
(a)
All disputes, controversies and questions directly or indirectly arising out of, in connection
with or in relation to this Contract or its subject matter, including, without limitation, all disputes,
controversies and questions relating to the validity, negotiation, interpretation, construction,
performance, termination and enforcement of this Contract (each and all, “
Dispute(s)
”), shall be
resolved finally and conclusively in accordance with this section, which shall be the sole and exclusive
procedure for the resolution of any Dispute.
(b)
The parties shall attempt in good faith to resolve any Dispute promptly by negotiation. If the
matter has not been resolved within sixty (60) days after a party’s request for negotiation, either party
may initiate arbitration as provided herein. Any Dispute, which has not been resolved as provided
above, shall, at the request of either party, be finally settled by arbitration under the International
Institute for Conflict Prevention & Resolution (“
CPR
”) Rules for Non-Administered Arbitration of
Business Disputes in effect on the date of this Contract, by an independent and impartial arbitrator
jointly selected by the parties. If the parties cannot agree on an arbitrator, then CPR shall appoint a
person whom it deems qualified to serve as the arbitrator. The validity of this arbitration provision, the
conduct of the arbitration, any challenge to, confirmation of, or enforcement of any arbitral award or
order, or any other question of arbitration law or procedure shall be governed exclusively by the
Federal Arbitration Act, 9 U.S.C. sections 1-16; however, the award can be modified or vacated on
grounds cited in the Federal Arbitration Act. The place of arbitration shall be in Cleveland, Ohio, U.S.A.
The language of arbitration shall be English. The federal and state courts located in the State of Ohio,
U.S.A. shall have exclusive jurisdiction over any action brought to enforce this arbitration provision,
and each party irrevocably submits to the jurisdiction of those courts for that purpose. Notwithstanding
the foregoing sentence, either party may apply to any United Stated District Court of competent
jurisdiction, wherever situated, for enforcement or confirmation of any judgment on an arbitral award.
(c)
Notwithstanding any other provision of this Contract, the parties expressly agree that before
the first meeting of the arbitral tribunal, either shall have the right to apply to any state or federal court
in Ohio, U.S.A or any other court that would otherwise have jurisdiction, for provisional or interim
measures.
(d)
Each party hereby consents to a single, consolidated arbitration proceeding of multiple
claims, or claims involving more than the parties. The prevailing party or parties in any arbitration
conducted under this paragraph shall be entitled to recover from the other party or parties (as part of
the arbitral award or order) its or their attorneys’ fees and other reasonable costs of arbitration.
Supplier and Buyer hereby mutually agree to waive to the extent permitted by law, trial by jury in any
litigation in any court in connection with or arising out of this Contract or the Supplier/Buyer
relationship. The provisions of this Section 32 shall survive any termination or expiration of this
Contract.
33.
WAIVER:
No claim or right arising out of a breach of this Contract can be discharged in whole or
in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by
consideration and is in writing signed by the waiving party. The failure of Buyer to enforce at any time or
19
for any period of time any of the provisions of this Contract shall not be construed to be a waiver of such
provisions nor the right of Buyer thereafter to enforce each and every such provision.
34.
MATERIAL MANUFACTURED BY
BUYER:
To the extent practicable, Supplier shall include
the use of materials, manufactured components and services that can be supplied and/or provided by
Buyer and/or its affiliates wherever suitable for application in all Products and Deliverables.
Notwithstanding this provision, it is the Supplier’s responsibility and obligation to ensure that all
specifications are met with respect to component parts regardless of their source.
35.
LIENS:
Unless otherwise agreed by Buyer in writing, Supplier hereby waives the right to
assert and hereby releases any and all liens, claims or encumbrances which Supplier may assert
against Buyer, Buyer’s property, the Products or Deliverables. Supplier shall pay, satisfy, and
discharge all liens, claims, encumbrances or other obligations or liabilities which may be asserted
against Buyer or its property by reason of any act or omission of Supplier, its employees, agents,
subcontractors, or sub-suppliers in connection with or relating to performance under this Contract.
Before any final payment from Buyer, Supplier shall be required to show payment and release of all
debts, taxes, liens, claims, charges and obligations arising out of or connected with the performance of
this Contract. Supplier shall execute affidavits or provide such lien release certificates as Buyer may
require evidencing such release. In the event a lien is asserted against Buyer or its property by reason
of any act or omission of Supplier, its employees, agents, subcontractors or sub-suppliers, Buyer may
exercise its right of setoff hereunder for any amounts paid by Buyer to release such lien.
36.
PERSONAL DATA PROTECTION:
Supplier agrees that Buyer’s Confidential Information shall be
subject to the organizational, technical, and physical controls and other safeguards set out in the GE
Privacy and Data Protection Supplemental Appendix, incorporated herein and available at
http://www.gesupplier.com/html/GEPolicies.htm
(“
PDP
”). If Supplier has access to “GE Restricted Data,”
“Sensitive Personal Information,” “Controlled Data,” or a “GE Information System” as defined in the PDP,
Supplier agrees to apply such additional safeguards and to grant GE such additional rights as are set out
in the PDP in connection with any such data and systems.
.
37.
SUPPLIER PERSONNEL:
(a)
The term “
Supplier Personnel
” means all Supplier employees and third parties
(including, but not limited to, contractors, agents, representatives, leased workers, consultants, sub-
suppliers and subcontractors) used by Supplier that directly or indirectly provide items or services used in
furnishing Products and/or Services and Deliverables to Buyer.
(b)
Buyer shall, at all times, have the right to review and approve any Supplier Personnel
assigned to perform Services and to reject or have removed immediately from the provision of Services
hereunder, any Supplier Personnel. The exercise of this right shall be independent of any alleged breach
by Supplier of this Contract.
Supplier shall pay the costs of familiarizing any replacement Supplier
Personnel for the provision of Services or Deliverables and Buyer agrees that time deadlines and cost
estimates, if any, may require adjustment as a result of replacing Supplier Personnel unless removal is for
good cause. Buyer may request to interview and approve any replacement Supplier Personnel for the
provision of Services and/or Deliverables prior to such individual’s commencement of such Services for
Buyer; Buyer’s approval shall not be unreasonably withheld.
(c)
Nothing in this Contract shall be interpreted or construed as creating or establishing the
relationship of employer and employee between Buyer and either Supplier or any Supplier Personnel.
Supplier shall be solely responsible for payment of all compensation owed to Supplier Personnel, as well
as federal and state income tax withholding, social security taxes, and unemployment insurance
applicable to such Supplier Personnel as employees, and Supplier shall bear sole responsibility for any
health or disability insurance, retirement benefits, or other welfare or pension benefits (if any) to which
Supplier Personnel may be entitled. Neither Supplier nor Supplier Personnel shall have any right or
authority to assume or create any obligation of any kind, expressed or implied, in the name of or on behalf
of Buyer.
Supplier is responsible for all employer obligations toward all Supplier Personnel under all
20
applicable laws and Buyer policies.
Supplier will defend, indemnify and hold Buyer harmless against any
claims that in any way (i) assert that any Supplier Personnel are employees or joint employee of Buyer,
(ii) relate to the conduct of any Supplier Personnel; and/or (iii) pertain to a breach of this Contract by any
Supplier Personnel.
(d)
Supplier shall be responsible for maintaining satisfactory standards of personnel
competency, conduct and integrity, and shall be responsible for taking such disciplinary action with
respect to all such Supplier Personnel as may be necessary. Without limitation to the foregoing and
when Supplier Personnel are on Buyer’s premises, Supplier will immediately remove and replace any
Supplier Personnel if Buyer determines that such Supplier Personnel violated or may have violated any
Buyer policies. In addition, for Supplier Personnel providing Services in the United States, Supplier shall
also assure the Supplier Personnel’s status to rightfully work in the United States through compliance with
the Immigration and Naturalization Service’s I-9 process. For Supplier Personnel providing Services in
jurisdictions outside the United States, Supplier shall assure that such Supplier Personnel comply with
local law requirements in such jurisdictions with respect to the right to work in such jurisdiction.
(e)
Supplier is solely responsible for procuring and maintaining, and for ensuring that all of its
Supplier Personnel providing Services agree to comply with, all necessary permits and licenses of
governmental entities required in connection with Supplier’s performance of the Services, including,
where applicable, processing and procuring all necessary visas, work permits, and passport documents
for its employees in advance of their assignment in connection with the provision of any Services in a
timely manner to avoid any unnecessary delay
38.
BACKGROUND CHECKING
:
To the extent permissible by applicable law, Supplier shall,
through the utilization of an authorized background checking agency, perform background checks as set
out in the GE Background Checking Guidelines located at
http://www.gesupplier.com/html/GEPolicies.htm
prior to (a) stationing any Supplier Personnel to perform
Services at any GE location, facility or work site (for purpose of clarity, “stationing” shall not include
periodic attendance or visits to such locations, facilities or work sites); (b) granting access to GE networks
(such as having a GE-issued single sign-on account) to Supplier Personnel to provide the Services; (c)
assigning Supplier Personnel to duties that are directly related to the safe operation or security of a GE
facility or piece of equipment and which, if not performed properly, could cause a serious environmental,
health or safety hazard to employees or the general public; or (iv) assigning Supplier Personnel to a GE
worksite that is designated in its entirety as “security sensitive,” even though the work responsibilities, if
performed in another context, would not be security sensitive; and after securing appropriate written
authorization from its Supplier Personnel.
39.
DRUG USE POLICIES:
Unless conflicting with any applicable laws, Supplier will advise any
Supplier Personnel who provide Services under this Contract on Buyer’s premises of Buyer’s right to
require an initial drug screen prior to the commencement of the Services and, further, to require a drug
screen at any time during the provision of Services: (a) if Buyer believes in good faith that the Supplier
Personnel is under the influence of an illegal substance, (b) as a consequence of an accident caused by
or involving the Supplier Personnel on Buyer’s premises during the performance of this Contract and
likely to have been related to the Supplier Personnel’s use of an illegal substance, or (c) if mandated by
applicable regulations in connection with the Service being provided. Any drug screen shall be performed
by Supplier at Supplier‘s expense and Supplier will address any positive results and handle accordingly.
Supplier Personnel will not be permitted to perform the Services if a positive result of said drug screen is
determined.
40.
EXPENSES:
In the event that the PO specifies that Buyer shall reimburse Supplier for travel
and lodging expenses incurred solely in the context of Supplier rendering Services, Supplier is
responsible for ensuring that said expenses conform to the following:
(a)
Airline Travel: only actual costs of the fare shall be charged to Buyer. Only coach fare
shall be used. Cost of ground transportation and parking for airline travel is charged at actual incurred
21
cost including any reasonable gratuities.
Supplier shall schedule airline travel at least fourteen (14) days
in advance, unless otherwise specified by Buyer in writing.
(b)
Auto Expense: the current IRS mileage standard per mile shall be reimbursable, plus
any tolls. If Buyer has agreed in writing to reimburse rental car fees, then only actual costs shall be
reimbursed by Buyer; provided, however, that Supplier is responsible for all costs associated with
maintaining sufficient insurance coverage.
(c)
Lodging: standard, single room rates shall be reimbursable, not to exceed Buyer’s
negotiated rate per day, unless otherwise authorized in advance and in writing by Buyer.
(d)
Meals and incidentals: actual out-of pocket expenses shall be reimbursable, including
any reasonable gratuities. Daily means shall not exceed Thirty Unites States Dollars (U.S. $30.00) per
day, unless Buyer has provided prior written approval to the contrary.
All other expenses, costs and fees are the sole responsibility of Supplier and are not reimbursable by
Buyer. All reimbursable expense charges shall be based on documented, actual out-of-pocket, incurred
charges. No “service” charge or other similar form of additional charge shall be reimbursable.
Supplier
shall provide copies of all original receipts. When Buyer’s corporate discounts are available and are to be
used, Buyer shall notify Supplier, and Supplier agrees to comply with such notification for reimbursable
expenses or otherwise waives its right to seek reimbursement from Buyer.
41.
OWNERSHIP OF DELIVERABLES; SOFTWARE PRODUCTS; CLICK-WRAP:
(a)
Buyer is hereby the exclusive owner of all Deliverables and all intellectual property rights
including trade secrets, copyrights, moral rights, database rights and patents) thereto. All Deliverables
considered “works made for hire” under the U.S. Copyright Act of 1976 (the “
Act
”) shall be considered
“works made for hire” under this Contract.
Supplier hereby assigns to Buyer all right, title and interest to
all other Deliverables, including any works of authorship and all intellectual property rights hereto, that are
not considered “works made for hire” under the Act. To the extent that any Supplier, including Supplier
Personnel, pre-existing materials (including third party or open source software) are contained in the
Deliverables, said pre-existing materials must be identified as such in writing to Buyer prior to Supplier
rendering any Services or Deliverables, and Supplier (on its behalf and on behalf of Supplier Personnel)
hereby grants Buyer, its customers and all other users an irrevocable, worldwide, nonexclusive, paid-up,
royalty-free, sublicenseable (through all tiers of sublicensees) right and license to use, execute,
reproduce, perform, display, re-sell, distribute, and prepare derivative works of such pre-existing material
and derivative works, and to make, have made, use, sell, offer to sell, and import products and processes
utilizing such pre-existing materials, but in any case limited to the extent needed by Buyer, its customers
and other users to exploit the Deliverables. Upon Buyer’s request and at Supplier’s expense, Supplier
will provide Buyer with such assistance as Buyer may require, including whatever documents, information
or materials are in Supplier’s possession or available to Supplier, in order to enable Buyer to protect its
ownership rights, including copyrights and patents, in any Deliverables. With respect to inventions for
which Buyer wishes to seek patent protection, Supplier agrees to secure all necessary agreements with
Supplier Personnel to ensure assignment of their interests in each such invention to Buyer as well.
Supplier at its expense will take all reasonable steps necessary to secure cooperation of Supplier
Personnel with Buyer in filing such patent applications, including obtaining the signatures of inventors on
all necessary legal documents. To the extent a Deliverable includes or consists of software,
Supplier shall
deliver to Buyer the complete source code and object code versions.
(b)
To the extent that any Products contain or consist of software that is not Buyer’s
property
by virtue of subsection (a) above or otherwise (including third party or open source software), Supplier
hereby grants Buyer, its customers and all other users an irrevocable, worldwide, nonexclusive, paid-up,
royalty-free, sublicenseable (through all tiers of sublicensees) right and license to use, execute,
reproduce, perform, display, re-sell, distribute, and prepare derivative works of such software, and to
make, have made, use, sell, offer to sell, and import products and processes utilizing such software, but
in any case limited to the extent needed by Buyer, its customers and other users
to exploit the Products.
22
(c)
If Seller provides any software under this Contract which requires Buyer, its customer or
any other user to “accept” various terms and conditions, including, but not limited to, “click-wrap,” “click-
through,” “browse-wrap,” or “shrink-wrap”, such terms and conditions will be of no force and effect even
though they are “accepted” by Buyer or Buyer’s designee in order to access or use the
software.
42.
TRADEMARKS:
The names and trademarks of each Party shall remain the sole and
exclusive property of that Party or its affiliates and shall not be used by the other Party for any purpose
whatsoever unless expressly authorized in writing by the owning Party.
43
.
CYBER SECURITY:
Supplier agrees that all Products and/or Deliverables supplied under this
Contract that include executable binary code shall comply with the terms and conditions of the Product
Cyber Security Appendix located at
http://www.gesupplier.com/html/GEPolicies.htm
.
44.
NOTICES:
Notices and other communications required to be made under this Contract must be
in writing in English, addressed to the parties at such addresses as may be designated in writing by either
party to the other and shall be deemed received when a) delivered by hand, b) on the date indicated on
the signed receipt if mailed by first-class registered or certified mail, postage prepaid, return receipt
requested, c) delivered by overnight courier or d) delivered through electronic media such as email or fax.
45.
ENTIRE AGREEMENT:
This Contract, any Confidentiality Agreement or Nondisclosure
Agreement entered into by the parties, and anything referenced and incorporated herein, including all
terms and conditions on the PO, the MAS, and the Release, sets forth the entire agreement between the
parties as to the subject matter herein and supersedes any prior or contemporaneous agreements,
written or oral, between the parties. The order of precedence for resolution of conflicts is: (a) any
separate, written supply or sourcing agreement under which the PO containing this Contract is issued; (b)
this Contract; and (c) Buyer Standing Instructions, Specifications and
Standards. If not specifically noted
which controls, any conflicts existing in those documents shall be resolved by Buyer’s written direction
specifying which provision is applicable. Product prices under this Contract may only be amended by a
written agreement signed by Buyer and Supplier.
rev. 8/16
