These terms and conditions apply to all services performed and deliverables provided to Ajinomoto Foods North America, Inc. (“Company”) under the Purchase Order to which these terms and conditions are attached (the “Order”). This Purchase Order is issued subject to named vendor (“Provider”) which agrees to be legally bound as follows:
1. Agreement to Perform Services and Provide Deliverables. Company’s Order constitutes its offer to Provider and shall become binding subject to the terms and conditions set forth herein upon acceptance by Provider’s (i) acknowledgment, or (ii) delivery of the Deliverables or performance of the Services, either in whole or in part. Upon receipt of any necessary materials and/or information from Company (the “Materials”), Provider shall perform the Services and/or provide to Company the deliverables specified in the Order in accordance with these terms and conditions and any other attachment(s) or references to/in the Order (collectively, “Documentation”) which constitute part of the Order. Time is of the essence of this contract and Provider shall perform such services (“Services”) and provide such deliverables (“Deliverables”) on a timely basis in accordance with the Order. In no event shall Provider assign, subcontract or delegate any of its rights or responsibilities hereunder to any third party without Company’s prior written consent.
2. Materials Furnished by Company. Company shall at all times retain title to any Materials, and Provider agrees that title to Materials shall not be affected by Provider’s performance of the Services including those that result in incorporation in or attachment of the Materials to any other property. Provider shall use any designs, tools, patterns, drawings, information and equipment furnished by Company only in the performance of the Services. Upon completion or termination of the Order, all items furnished by Company shall be returned to Company or disposed of pursuant to Company’s instruction. Provider shall be liable for any loss or damage to property furnished by Company while such property is in Provider’s possession or control.
3. Compliance with Laws. Provider shall comply with all applicable present and future orders, regulations, requirements and laws of any and all supra-national, national, federal, state, provincial and local authorities and agencies. Provider represents and warrants to Company that it has and will maintain all government permits, including without limitation, health, safety and environmental permits, necessary for the conduct of the actions and procedures that it undertakes pursuant to the Order or Documentation. To the extent specified in the Order with respect to a particular Deliverable, Provider shall manufacture such Deliverable in compliance with current good manufacturing practices. Provider agrees that any material violation of law by Provider relating to basic working conditions and human rights, including child labor, slavery, and human trafficking laws, applicable to Provider’s performance under this Order may be considered a material breach for which Company may elect to cancel any open orders with Provider at no cost to Company.
4. Shipment and Acceptance. All Deliverables provided hereunder shall be shipped to the destination(s) specified in the Order, DDP (INCOTERMS 2010) at such destination. Title shall pass upon delivery of Deliverables at the destination. Provider will package and ship Deliverables in accordance with Provider’s customary practices for similar goods, unless otherwise specified by Company. Freight, handling, insurance, duties, taxes and shipping expense are included in the total price specified in the Order. All extra or non-included charges of any kind, including but not limited to providing cartons, insurance, packing, crating, wrapping, boxing, drayage, excess transportation costs, fees, fines, storage, etc. will be borne by Provider, unless otherwise explicitly provided on the face of the Order. All Deliverables will be subject to inspection and acceptance at Company’s facilities or the specified destination. Company reserves the right to accept or reject any defective or partial shipment in whole or in part. Company, at its election, may return rejected Deliverables to Provider at Provider’s expense and require Provider to repair or replace any rejected Deliverables at its sole cost and expense. Provider will promptly reimburse Company for any loss incurred by Company due to any defects in such Deliverables and will defend and hold Company harmless from any claims of third parties due to any failure of the Deliverables to conform to the specifications set forth in the Order. This paragraph shall not limit Company’s right or Provider’s obligations under any other provisions of the Order in law or in equity. Specifically, this paragraph does not limit any right of rejection or revocation of acceptance which Company may have at law. Acceptance shall not be conclusive and may be revoked with respect to latent defects, fraud or such gross mistakes as amount to fraud.
5. Invoices & Payment. Provider shall promptly invoice Company for any amounts due under the Order. Company will not be obligated to pay any invoice received more than 60 days after the date of the relevant Service(s) or delivery of Deliverable(s). Company shall pay for the Services and Deliverables as specified in the Order, subject to Company’s right to discounts, deductions, or rebates agreed between the parties. Provider’s price charged for Services and Deliverables shall be the lowest price charged by Provider to buyers of similar services, deliverables and quantity. Payment does not constitute or imply acceptance. Payment terms are Net 30 days, unless otherwise specified in the Order. Final payment shall only be made upon successful completion, delivery of Service, Product and/or documentation by Provider. Company has the right to reduce and set-off against amounts payable hereunder any indebtedness or other claim that Company may have against Provider.
6. Intellectual Property. At all times, Company shall be the sole and exclusive owner of the Materials, and Provider shall have the right to use the Materials solely to perform the Services. Upon delivery of the Deliverables at the destination, Company shall be the sole and exclusive owner of the Deliverables. As between Provider and Company, all intellectual property and information resulting from the Services or otherwise specifically relating to or comprising any custom Deliverable is or shall be owned by Company. Provider shall cooperate with Company to effectuate the purpose(s) of this Section 6, including, without limitation, the execution of all relevant documents, in Company’s sole discretion to effectuate assignments.
7. Termination. Company may terminate this Order or any work undertaken hereunder at any time for any or no reason by notice in writing to Provider. Company shall only be liable upon termination for payment of the Order price for conforming Services or Deliverables completed up to the date of such termination.
8. Title upon Termination. Company may assume all right of possession, title and interest in or to all or any portion of the Materials, tooling, work in process or completed Deliverables covered by the Order by written notice to Provider following termination, subject to Company’s payment of amounts owing (if any) for such items in accordance with these terms and conditions.
9. Confidentiality. During the term hereof and for five years thereafter, each party agrees to maintain the confidentiality of any confidential information obtained from the other party and not to use such information for any purpose other than as expressly authorized. This obligation shall not apply to information which the receiving party can demonstrate by competent proof: (i) is now, or hereafter becomes, through no act or failure to act on the part of the receiving party, generally known or available; (ii) is known by the receiving party at the time of receiving such information; or (iii) is hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on disclosure. Provider acknowledges that all Documentation and Deliverables are the confidential and proprietary information of Company.
10. Representations and Warranties. Provider represents and warrants to Company that all Services shall be performed, and all Deliverables shall be generated, in accordance with, and shall conform to the specifications & performance guarantee set forth in the Order, shall be performed or generated (as applicable) in accordance with current good laboratory practices, current good clinical practices, and/or current good manufacturing practices, and be safe and fit for the intended purpose, including if applicable, fit for human consumption. Provider further represents and warrants that, at the time of delivery, all Deliverables shall be free from defects in design, workmanship, material and manufacture, and shall be free and clear of any lien or encumbrance or infringement of third-party rights. These Provider representations and warranties are non-exclusive and in addition to any others contained in the Order or by law.
11. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. Indemnification. Provider agrees to indemnify, defend and hold harmless, Company, its affiliates and their respective directors, officers, employees and agents (“Company Indemnitees”) from and against any and all losses, expenses (including reasonable legal counsel fees and expenses), costs, liabilities or damages (“Losses”) to which any Company Indemnitee may become subject as a result of any claim, demand, action or other proceeding by any third party arising out of Provider’s performance of the Services or provision of the Deliverables to the extent such Loss is caused, results from or arises out of (a) the material breach by Provider of any representation, warranty, covenant or other provision of these terms and conditions or the Order, (b) the negligence or willful misconduct of any Provider or its employees, officers or agents or (c) any violation of law or regulation by any Provider or its employees, officers or agents.
13. Insurance. Provider shall maintain third party liability and property damage insurance, including general and product liability with a combined single limit of not less than one million dollars per occurrence and in the aggregate, worker’s compensation insurance in the minimum amounts required by law, and automobile insurance coverage with a combined single limit of one million dollars, as shall be satisfactory to Company and which will insure Provider and Company from and against any and all occurrences resulting in claims for damages for bodily injury, death or damages arising from or in any way related to design or manufacture of Services and Deliverables, and such coverage will be primary and non-contributory. Provider shall add Company and its affiliated parent and subsidiary companies as additional named insured on any such insurance policy covering such Services and Deliverables, which policy shall require at least 30 days’ prior written notice to Company of material change, expiration, cancellation or termination of policy. Upon request, Provider shall supply Company with certificates evidencing such insurance.
14. Survival. Completion of the Services and delivery of the Deliverables will not relieve the parties of any obligation accruing prior to such completion. The provisions of Sections 3, 6, 8, 9, 10, 11, 12, 13, and 14 will survive such completion.
15. Miscellaneous. These terms and conditions shall be governed by the laws of the state where Company’s business unit that purchased the Products is located. All related disputes are subject to the exclusive jurisdiction of the state or federal courts located in such state, to which Supplier hereby consents. The prevailing party in any such action shall be entitled to recover from the other party, in addition to any other relief to which it may be entitled, attorneys’ fees and costs incurred in prosecuting or defending such action. Neither the Order nor these terms and conditions shall be assignable by Provider. If any term or provision, or any portion thereof, is held to be invalid, illegal or unenforceable, the remaining portions shall not be affected. The Order, these terms and conditions and the Documentation constitute the entire understanding between the parties with respect to the subject matter. No amendment shall be binding unless in writing and signed by both parties. No waiver of any provisions herein shall constitute a waiver of any other provision herein. No waiver of any provision of these terms and conditions shall be binding on the parties unless it is executed in writing by the party making the waiver.