sales

Terms & Conditions

US sales | terms & conditions 9-6-2016

1. DEFINITIONS. The following definitions apply unless otherwise specified:

Buyer means bibliotheca Group, and all subsidiaries in all countries

Conditions means the standard terms and conditions of purchase set out in this document and any special terms included in the Purchase Order

EU means European Union

Goods means all goods and materials described in the Purchase Order

Laws mean any law, statute, ordinance, rule, regulation, or order

Order means bibliotheca’s Purchase Order for supply of Goods and/or Services

Purchase Order or PO means the contractual instrument, including these Terms and Conditions, special or supplemental provisions, drawings, technical data, specifications, quality provisions, and all other documents incorporated herein

Seller means the legal entity contracting with the Buyer

Services means the services described in the Purchase Order

Terms and Conditions means the bibliotheca General Terms and Conditions of Purchase

Work means the labor, articles, materials, products, supplies, parts, substance, mixture, preparation, assemblies, commodities, data, drawings, goods, items, and/or services constituting the subject matter of the PO, including any packaging matter or containers

Writing includes telex, cable, electronic mail, facsimile transmission and comparable means of communication

2. GENERAL; ACCEPTANCE OF PO.

a. Seller agrees to perform the services ("Services") and/or provide the goods ("Goods") described in this purchase order/request for quote (“Order”) in accordance with these terms and conditions. Upon acceptance of this Order, shipment of Goods or commencement of Services, Seller shall be bound by the provisions of this Order, including all provisions set forth on the face of this Order.

b. All purchases made by bibliotheca (“Buyer” or “bibliotheca”) under this agreement will be made pursuant to Purchase Orders issued against these terms and conditions. ALL SUCH PURCHASE ORDERS WILL BE GOVERNED EXCLUSIVELY BY THESE TERMS AND CONDITIONS. Any additional or inconsistent terms or conditions contained in any acknowledgment, invoice or other communication of Seller are hereby rejected.

3. ENTIRE AGREEMENT; AMENDMENT.

This Order is the complete and final statement of the terms of the contract between the parties and supersedes all other prior or contemporaneous negotiations and agreements, whether oral or written, relating to the subject matter hereof. This Order may not be amended except in writing signed by both parties.

4. CHANGE ORDERS.

Buyer may at any time by change order modify this Order in any of the following respects: drawings, designs, specifications, shipping, packing, place of inspections, place of delivery, place of acceptance, adjustments in quantities, adjustments in delivery schedules or the amount of Buyer-furnished material. Seller shall promptly notify Buyer of any change in the cost or expected completion/delivery dates of Goods or Services covered hereby as a result of Buyer’s change order, and Seller shall provide final pricing (with supporting information) to Buyer no later than 30 days from the date of Seller’s receipt of Buyer’s change order.

5. SELLER CHANGES; OBSOLESCENCE.

a. Seller shall not make any changes in the specifications, physical composition of, or processes used to manufacture the Goods hereunder without Buyer's prior written consent.

b. Seller will notify Buyer as soon as possible and in such time as to preserve Buyer’s interest of suspected or known product obsolescence affecting the Goods hereunder. Seller will use all commercial efforts to i) track commercial availability of parts related to Goods; ii) obtain last time buys in sufficient quantities to satisfy Buyer’s demands; and iii) find suitable alternatives for the known or suspected parts for a period of five (5) years or for the length of the Contract, whichever is longer.

6. DELIVERY; TRANSFER OF TITLE.

a. Delivery of Goods shall be FCA origin (Incoterms 2010) and shall be made pursuant to the schedule, via the

carrier and to the bibliotheca facility specified on the face of this Order, without charge for boxing, crating, carting or storage unless otherwise specified. If no delivery schedule is specified herein, Seller shall affect delivery by the most expeditious form of land transportation. If Supplier elects a more expensive shipping method to meet a required delivery date, Supplier will be responsible for any additional cost. If no method of shipment is specified in this Order, Seller shall use the least expensive carrier. TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY. Seller will immediately notify Buyer if it suspects or becomes aware of an inability to timely deliver ordered Goods. Upon such notice, Buyer may, at its option, i) decline to accept the Goods and terminate the Order; ii) demand its allocable fair share of Seller's available Goods and terminate the balance of the Order; or iii) require delivery by the fastest method to meet the delivery dates at the sole expense of Seller. Buyer reserves the right to charge the Seller for any losses sustained as a result of such termination

b. Title to Work will pass to Buyer upon acceptance, regardless of when or where Buyer takes physical possession, unless the PO specifically provides for earlier passage of title.

7. RISK OF LOSS; DESTRUCTION OF GOODS.

Seller assumes all risk of loss with respect to Goods covered by this Order until receipt of Goods by Buyer at the designated destination. If Goods covered by this Order are destroyed prior to Buyer’s receipt thereof, Buyer may (a) cancel this Order or (b) require delivery by Seller as soon as commercially practicable of substitute Goods of equal quantity and quality.

8. PACKING AND SHIPMENT.

Seller shall package all Goods in suitable containers to permit safe transportation and handling, insure against damage from weather or transportation and secure the lowest transportation costs. Such containers must be appropriately labeled, contain packing sheets listing each item and its associated purchase order line item number. Buyer's Order number must appear on all containers, packing sheets, delivery tickets and bills of lading

9. INSPECTION.

Buyer may at reasonable times inspect the Goods and Services deliverables covered by this Order at Seller’s (or Seller’s sub-Seller’s) facilities. Buyer’s inspection of Goods before or after delivery shall not constitute acceptance. No inspection or test made prior to final acceptance shall relieve Seller from responsibility for defects or other failure to meet the requirements of Buyer’s Order. Goods covered by this Order will be subject to final inspection and approval by Buyer within a reasonable time after delivery to Buyer, notwithstanding payment by Buyer prior to delivery. Buyer may reject or revoke acceptance of any Goods which are defective in material or workmanship or which do not conform to Buyer’s specifications. Buyer may elect to:

a. return rejected Goods for the full invoice price plus applicable transportation charges;

b. retain rejected Goods for repair by Seller or, at Buyer’s election, for repair by Buyer with such assistance from Seller as Buyer may reasonably require; or

c. return rejected Goods to Seller for repair or replacement within such time as Buyer may reasonably require. All costs and expenses, loss of value and any other damages incurred by Buyer in connection with the repair or replacement of non-conforming Goods or Services may be recovered from Seller by an equitable price reduction or credit against any amounts otherwise owed by Buyer to Seller.

If Supplier is not able to replace rejected Goods or Services within a reasonable time, Buyer may purchase substitute Goods or Services elsewhere. If the cost of purchasing such substitutes exceeds the price stated in the original order, the n the Seller will be liable for the difference. All provisions and remedies of the Uniform Commercial Code relating to both implied and expressed warranties are herewith referred to and made a part of the Purchase Order

10. WARRANTY.

a. Seller warrants that all Goods and Services covered by this Order will conform to applicable specifications, drawings, samples and/or other descriptions given and will be merchantable and fit for the particular purpose for which they have been purchased and free from defects in workmanship and material for a period of eighteen (18) months from shipment or for the period provided in Seller's standard warranty covering the Goods, whichever is longer.

b. Supplier will use commercially reasonable efforts to obtain and flow through to Buyer third party warranties for any Goods not manufactured by Seller. In addition, all Goods covered by this Order shall be subject to all warranties provided by applicable law. Seller warrants that it has and will provide Buyer with title to all Goods covered by this Order, free and clear of all claims, liens or encumbrances.

c. All Goods provided to Buyer hereunder will be new. The warranties contained in this Section are in addition to and are not be construed as restricting or limiting any warranties or remedies of Buyer, express or implied, which are provided by this Order or law. Any attempt by Seller to limit, disclaim or restrict any such warranties or remedies of Buyer, in any manner whatsoever shall be null, void, and ineffective. Inspection, test, acceptance, or Buyer’s incorporation of the Good shall not affect the Seller’s obligation under this warranty, and shall survive such inspection, test, acceptance, and use.

d. Upon notice from Buyer that Good(s) supplied hereunder failed within the warranty timeframe, in addition to any rights or remedies Buyer may have under this Order or law, Seller shall reimburse Buyer for all direct costs incurred by Buyer as result of such failure including all repair and replacement costs and Seller shall replace such defective Goods at no cost to Buyer or refund the purchase price of the Good, at Buyer’s discretion.

e. Warranty failures shall be returned to Seller at Seller’s expense and at Buyer’s discretion. All repairs and/or replacements shall be with new products only. For Services provided, Seller warrants that (a) Seller and the individuals provided by it hereunder possess the experience and ability to perform the Services with a high standard of quality; (b) Services will be performed in a workmanlike and professional manner and in conformance with all applicable laws, regulations and professional standards; (c) Seller has the right to enter into and fully perform this Agreement and no Services, material, equipment or work product supplied by Customer will infringe the rights of any third party, including, but not limited to, patent, trade secret, trademark or copyright; (d) Seller is not prohibited by any agreement from entering into this Agreement nor providing the Services contemplated hereby; and (e) Seller has verified the credentials of the individuals provided by it hereunder and that they are suited to perform the Services.

11. INVOICING.

Seller’s invoices for Goods or Services covered by this Order shall be mailed to Buyer (Attention: Accounts Payable Department) promptly upon shipment. Line item detail, descriptions of Goods or Services and reference numbers on Seller’s invoices must correspond to their counterparts on the face side of this Order. Buyer’s standard payment terms are Net 60 days from date of invoice unless otherwise agreed. Buyer shall pay Seller (a) the amount agreed upon and specified in Order/Agreement or (b) Seller's quoted price on date of shipment (for Goods) or date of commencement of performance (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, value-added taxes, duties, customs, tariffs, imposts and government imposed surcharges must be stated separately on Seller's invoices. Buyer shall have the right at all times to set off any amount owing from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer.

12. PAYMENT. Pricing for Blanket Purchase Orders or Long Term Buy Arrangements are subject to the following conditions:

a. Prices for Goods are in U.S. dollars and are not subject to increase for the duration of the supply agreement. No charges or price increases of any kind shall be allowed unless specifically agreed to by Buyer in writing.

b. Seller warrants that it is selling at the lowest or most favorable prices that it offers to other buyers for Goods or Services.

c. If during the term of the Agreement, Buyer receive a bona fide offer from another supplier to supply any Goods or Services at a price below that in effect for those purchased under the Agreement or Buyer presents reasonable evidence to Seller then Seller will meet the price for the Goods or Services for the duration of Agreement or if Seller fails to meet such price, then Buyer, shall have the right to purchase from the other supplier, as well as the right, but not the obligation, to terminate the Agreement without liability. Except as otherwise expressly provided, Seller shall bear all of Seller’s own expenses incurred in providing Goods and/or Services.

13. LIABILITY AND INDEMNITY.

In addition to and without prejudice to the generality of these conditions, Seller undertakes to keep bibliotheca fully indemnified against all liability, loss, damage, costs, and expenses (including but not limited to legal expenses) directly or indirectly arising from or incurred or paid by bibliotheca in relation to:

a. any damage bibliotheca’s property and any claims for loss, injury, or death to any third party or the property of any third party by reason of the Seller’s negligence or any act of omission on the part of employees, subcontractors, or agents of the Seller arising out of the execution of the order or the failure to adequately insure against this liability

b. failure of the Goods to be of good and merchantable quality and fit for the purpose for which they were designed to fulfill or other purpose made known expressly or impliedly by bibliotheca to the Seller

c. any defect or fault discovered in the Goods including, without limitation, defects in design, materials, and workmanship

d. failure of the Goods to conform to the standards and the specification

e. failure of the Goods to comply with all statutory requirements and regulations relating to the sale of the Goods

f. any encumbrance of the Goods

g. failure to provide the Services with reasonable care and skill

h. failure of the Seller to provide suitable qualified and experienced personnel to carry out the Services or related tasks

i. failure to provide the Services in a timely and efficient manner

j. any claim for infringement of any intellectual property rights which arises as a result of the sale or use of the Goods or Services, and delivery of the Goods or performance of the Services after the negotiated delivery date

k. bibliotheca shall not be liable to the Seller in contract, tort, misrepresentation or otherwise including any liability for negligence or for breach of statutory duty for:

i. any loss of revenue, business, contracts, profits, or

ii. any indirect or consequential loss, howsoever arising

l. bibliotheca’s aggregate liability in contract, tort, or otherwise, including negligence, howsoever arising out of or in connection with the contract shall be limited to the price of the contract

m. Nothing in this contract shall limit the liability of either party for death or personal injury resulting from negligence, fraud or deceit of either party or any other liability to the extent that it cannot be limited by law

14. INTELLECTUAL PROPERTY RIGHTS.

The Seller indemnifies bibliotheca against all actions, claims, proceedings, damages, costs, and expenses arising from any actual or alleged infringement of Intellectual Property rights or breach of confidentiality by bibliotheca’s possession or use or sale, lease, or hire of any of the supplies from the Seller directly or indirectly to bibliotheca or any of its customers or partners, anywhere in the world

15. CONFIDENTIALITY.

Seller agrees to maintain Buyer Confidential Information (as herein defined) in confidence during and following termination or expiration of this Order.

a. Seller will not copy, alter or otherwise use Buyer Confidential Information for its own benefit or disclose such Buyer Confidential Information to others.

b. "Buyer Confidential Information" is all of Buyer’s information disclosed to Seller, whether written or oral, in any form, relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as herein defined) and other material or information relating to Buyer’s current or anticipated business.

c. At Buyer's request or on termination of this Order, Seller shall return all Buyer Confidential Information which includes Work Product to Buyer. Seller agrees to limit distribution of Buyer Confidential Information only to Seller’s employees, agents or sub-Sellers who have a need to know, and to take steps to ensure that such distribution is so limited, including the execution by Seller’s employees, agents or sub-Sellers of confidentiality/nondisclosure

agreements containing provisions substantially similar to those set forth herein.

d. Seller shall not, without Buyer’s prior written consent, use Buyer’s name or trademarks in any advertising, promotion or communication to the public or advertise, publish or announce Buyer’s purchase of Goods or Services pursuant to this Order.

16. INTELLECTUAL PROPERTY RIGHTS; WORK PRODUCT.

Seller agrees that where Seller undertakes activity of research, development and/or design nature using information provided by Buyer, Buyer shall exclusively own all rights, title and interest in any resulting work product including, without limitation, all know-how, trade secrets and intellectual property. Seller shall take all necessary steps to ensure that Buyer obtains full legal title in and to such rights. Seller will ensure that Seller's employees, agents and sub-Sellers appropriately waive any and all claims to, and assign to Buyer, all rights or interests in, any Work Product created in connection with this Order. Seller grants the right to Buyer to produce copies, reproductions or derivative works of material provided under this agreement for purposes of this agreement.

17. INSURANCE.

Supplier shall provide and maintain for Services rendered throughout the term of this Agreement inclusive of any warranty obligations the following insurance:

a. Workers Compensation: Statutory in accordance with the state in which the services are being performed.

b. Employers Liability in the amount of $ 1,000,000 each occurrence

c. Commercial General Liability with limits of $3,000,000 each occurrence, $ 5,000,000 aggregate, for bodily injury and property damage combined. Policy will include the following coverage features (1) blanket

contractual liability, (2) Products, (3) completed operations, and (4) independent Sellers coverage

d. Automobile Liability with limits of $ 2,000,000 each occurrence for bodily injury and property damage combined if automobile usage is required to perform Services hereunder. Coverage will include “owned”, “hired” and “ non-owned “ automobiles

e. Umbrella or Excess Liability with limits of $ 5,000,000 each occurrence and aggregate for bodily injury and property damage. Policy must be “follow form” to all primary policies listed above with the exception of Workers Compensation

f. Professional Liability Insurance. To the extent that Seller is providing design services, Seller will obtain adequate levels of Professional Liability insurance to cover risk of loss reasonably related to the scope and extent of the Services provided. At minimum the coverage will be: $2,000,000 combined single limit each accident. The Seller shall provide bibliotheca evidence of coverage with a professional liability policy that includes professional liability coverage retroactive to the date that Seller first rendered Services in connection with the Project and with a discovery period continuing for a period of at least three years after final completion of all Services performed pursuant hereto.

g. Crime Insurance/Employee Dishonesty of sufficient levels if Seller or its employees will have access to bibliotheca’ data transmission networks, finances or the interior of its or its customers’ premises.

h. All insurance required above will be written with insurers rated A or better by the latest “Bests” Guide. All policies with the exception of Workers Compensation will identify Buyer as an additional insured. Suppliers insurance will be primary and non-contributory to that maintained by Buyer.

18. TERMINATION FOR CAUSE.

Should Seller (i) become unable to pay its debts as they mature, or become in any way the subject of a bankruptcy petition, (ii) have a change in ownership or management such that a competitor of Buyer gains an ownership or controlling interest in Seller, and/or (iii) materially default in the performance of any provision of the supply agreement, Buyer may in its discretion terminate this Order or any other Purchase Order for "cause" by giving Seller thirty days prior written notice thereof. If Seller, within the thirty-day notice period, corrects the cause giving rise to the notice to the satisfaction of Buyer, Buyer may void the termination. In the event Buyer terminates an order pursuant to this Section, Buyer shall have all rights and remedies available under law and equity and will have no further obligation to Seller. Seller will, at its expense, promptly deliver to Buyer all Buyer Confidential Information, Work Product or other tools and property owned by Buyer and in Seller's possession.

19. TERMINATION FOR CONVENIENCE.

Buyer may at any time by notice to Seller, terminate all or part of this Order, effective as of the date specified in such notice. Upon receipt of Buyer’s notice of termination, Seller shall stop work and take such other action as may be specified by Buyer in such notice, to facilitate termination of the Order or applicable

part. Upon termination, Buyer shall not incur any further cost or liability to Seller except for Goods already delivered and/or actual costs less any commercial value incurred to the date of termination. Seller may not, later than six (6) months after Seller’s receipt of Buyer’s termination notice, submit to Buyer a claim for reimbursement of costs incurred by Seller by reason of Buyer’s termination for convenience. Seller shall have the duty to mitigate damages.

20. TERMINATION FOR DEFAULT.

a. Buyer may by written notice of default to Seller, terminate the PO in whole or in part if Seller: (1) fails to deliver Work within the time specified by the PO or any extension issued in writing by the Procurement Representative; (2) fails to make progress, so as to endanger performance of the PO; or (3) fails to comply with or perform any of the provisions of the PO.

b. Buyer’s right to terminate the PO under Paragraph (a)(2) or (a)(3) of this clause may be exercised if Seller does not cure such failure within 10 days after receipt of the notice from Buyer specifying the failure

c. If Buyer terminates the PO in whole or in part, it may acquire, under the terms and in the manner Buyer considers appropriate, Work similar to that terminated, and Seller will be liable to Buyer for any excess costs of such Work. However, Seller will continue Work not terminated

d. If the PO is terminated for default, Buyer may require Seller to transfer title and deliver to Buyer, as directed by the Procurement Representative, any completed Work or partially completed Work that the Seller has specifically produced or acquired for the terminated portion of the PO. Upon direction of the Buyer, Seller will also protect and preserve property in its possession in which Buyer has an interest

e. Buyer will pay the PO price for completed Work accepted by Buyer. Seller and Buyer will agree on the payment for the uncompleted Work that the Procurement Representative has directed be delivered to the Buyer. Buyer may withhold from these amounts any sum Buyer determines to be necessary to protect Buyer against loss.

f. If, after termination, it is determined that Seller was not in default, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Buyer under the Termination for Convenience clause. The rights and remedies of the Buyer in this clause are in addition to those provided by law or under this PO.

 

21. FORCE MAJEURE.

Neither Seller nor Buyer shall be liable for any delay or failure to perform any of its obligations under this Order if and to the extent such delay or failure is due to circumstances beyond the reasonable control of such party, including but not limited to, fires, floods, explosions, accidents, acts of God, declared and undeclared wars or riots, strikes or lockout,  shortages of materials or transportation facilities, inability to obtain export or import licenses, acts of government or any provision or requirement of any law, regulation, order or rule.

22. LABOR DISPUTES.

Seller shall give Buyer prompt notice of every labor dispute or issue which may affect Seller’s ability to deliver Goods or Services pursuant to the terms of this Order. Buyer shall not have any obligation to reimburse Seller for losses or additional costs incurred by Seller as a result of labor disputes.

23. INJUNCTIVE RELIEF.

Because damages for violation of this Agreement may be difficult to ascertain and because violation of this Agreement may result in irreparable injury to bibliotheca for which money damages may not adequately compensate bibliotheca, Seller hereby consents to the entry of an order against Seller to prevent any breach of this Agreement or any continuing breach of this Agreement by Seller as well as any other relief available to it at law or equity.

24. LIMITATION OF REMEDY; LIMITATION OF LIABILITY.

Seller's sole remedy on account of Buyer’s breach of this Order shall be the right to damages in the amount equal to the difference between the market price of the subject Goods or Services at the time of breach and the purchase price specified in this Order. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR INCURRED IN CONNECTION WITH THIS ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

25. INDEPENDENT SELLER.

Seller is an independent Seller for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Seller will secure, at Seller’s sole cost, worker's compensation insurance, disability benefits insurance, and any other insurance required by law. bibliotheca will not provide, nor will it be responsible to pay for, employee benefits to Seller or employees of Seller. Seller will pay all required taxes, whether federal, state or local in nature, including, but not limited to, income taxes, FICA, payroll or self-employment taxes, unemployment compensation taxes, and any other fees, charges, licenses, or other payments required by law on any compensation paid by bibliotheca to Seller pursuant to this Agreement. Seller hereby waives any right to bring a claim or action against bibliotheca or any of its affiliates as to entitlement to any employee benefits with respect to periods of performance hereunder.

26. COMPLIANCE WITH LAW.

Seller shall comply with all applicable laws, regulations, rules or orders in connection with its performance hereunder. At Buyer’s request, Seller shall issue certificates certifying compliance with any laws or regulations as may be applicable to the Goods or Services covered by this Order in each case in form and substance satisfactory to Buyer.

27. COMPLIANCE WITH ENVIRONMENTAL AND REGULATORY REQUIREMENTS.

Seller represents and warrants that it will comply with any and all applicable global, federal, state, or local laws, regulations, and orders, including but not limited to the following:

a. EU Directive 2011/65/EU of 8 June 2011 on the restrictions of use of certain hazardous substances in electrical and electronic equipment (“RoHS 2”)

b. The Administrative Measure on the Control of Pollution Caused by Electronic Information Products effective March 1, 2007 (“China RoHS”)

c. The UK Sale of Goods Act 1979

d. Supplier shall adhere to all regulations concerning radioactive substances in metals; and, if necessary, routinely test and audit its supply chain for potential radioactive contamination of stainless steel or other nickel bearing alloy contamination of cobalt-60.

e. Regulation (EC) No 1907/2006 of 18 December 200 6 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”) that applies to or affects the Work supplied by the Seller to Buyer. Seller further represents, warrants, and covenants the following:

i. No substance contained in any Work is intended to be released under normal and reasonably foreseeable conditions of use, as understood in Article 7(1)

ii. No substance on the Candidate List of Substances of Very High Concern (“SVHC”) is present in any Work in a concentration at or above 0.1% (w/w), as such concentration is defined and interpreted pursuant to REACH

iii. No substance in any Work supplied by Seller to Buyer requires registration or notification under Article 6 or 7 of REACH

iv. No substance on the Authorization List (Annex XIV) is present in any Work supplied by Seller to Buyer

v. All substances comply with the restrictions in Annex XVII to REACH

vi. In the event that Seller becomes aware that any previous representation made to Buyer is not accurate or ceases to be accurate, Seller will:

1. Promptly notify Buyer

2. Ensure that the substance is registered or notified to the European Chemicals Agency (“ECHA”)

3. Provide Buyer with name of substance as well as with sufficient information to allow Buyer to safely use the Work or fulfill Buyer’s obligation under REACH

vii. In order to comply with the above-mentioned commitments, Seller will monitor the publication and updating of Candidate List by ECHA and immediately notify Buyer if any of the Work contains a substance officially proposed for listing on the Candidate List

viii. Seller shall ensure that its suppliers undertake the same exercise and timely register and pre-register substances to the extent required by REACH and to prevent any interruption to the supply chain

28. SUBCONTRACTING.

Seller shall not, without Buyer's prior consent, subcontract more than 25% of the value of this Order (excepting raw material).

29. EXPORT/IMPORT CONTROLS.

Seller will not use, export, re-export or otherwise release any technology or technical data provided to Seller by Buyer or any of Buyer’s subsidiaries or affiliates under this Order, except in compliance with all applicable U.S. export laws and regulations. Seller agrees that unless otherwise expressly agreed upon, Buyer will not be a party to the foreign importation of the Goods, that the transaction(s) represented by this Order will be consummated subsequent to importation, and that Seller will neither cause nor permit Buyer’s name to be shown as “importer of record” on any customs declaration and that Seller will comply with all applicable laws, rules and regulations governing foreign purchases and importation.

30. LIENS AND CLAIMS. Seller shall fully indemnify bibliotheca and the property owner against all liens and/or claims of any laborers, materialmen, and sub-Sellers of Seller against bibliotheca or the property on or for which the Services are performed and shall furnish to Seller, upon request, affidavits of status of accounts and releases of liens.

31. BUYER'S PROPERTY.

All tools, gauges, dies, fixtures, patterns, raw materials and inventory furnished by Buyer, or which Buyer specifically authorizes Seller to acquire, develop or design for work on this Order, shall be the exclusive property of Buyer. Property shall be listed and maintained in suitable condition to do the work by and at the expense of the Seller, and will be returned to Buyer within 72 hours after request. Delivery of the Property shall be, FCA Seller's plant. Property is maintained at Seller’s risk. All costs for Property are included in this the Price of this Order.

32. CODE OF CONDUCT.

Seller acknowledges receipt of a copy of bibliotheca’s Code of Conduct (hereinafter “Code”) located at http://www.bibliotheca.com/3/index.php/en-us/our-business/corporate-informationand will perform the Services consistent with such Code. Seller will avoid any conflicts of interest as defined in the Code and promptly notify bibliotheca of any circumstances of which Seller becomes aware which may give rise to such a conflict. Seller will provide any worker assigned to bibliotheca with a copy of the Code and to advise the worker of his or her obligations to comply with the Code.

33. ANTI-CORRUPTION.

Seller will comply with all applicable country laws relating to anti-corruption and/or anti-bribery, including but not limited to the Foreign Corrupt Practices Act, as amended, (FCPA) regardless of whether the Seller is in the jurisdiction of the United States, and the 2010 UK Bribery Act (as amended), and neither directly nor indirectly pay, offer, give, or promise to pay or give, any portion of monies or anything of value received from a buyer to a public official or any person in violation of the FCPA, UK Bribery Act, and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery

34. QUALITY AND COST IMPROVEMENT.

Supplier agrees to participate in Buyer’s quality initiatives relating to Seller performance, as reasonably requested by Buyer, and to devote sufficient resources thereto. Seller will assist bibliotheca, at no additional charge, in on-going cost reduction efforts. Examples should include, but are not limited to: 1) proposing the use of lower cost materials, 2) submitting suggestions for design improvements to lower labor costs or 3) the implementation of more efficient manufacturing processes.

35. NON-COMPETITION.

During the term of this Agreement, and following the termination or expiration of this Agreement, Seller will not render Services or provide Goods incorporating bibliotheca designs or specifications, directly or indirectly, to any bibliotheca Competitor or Customer.

36. AUDIT CLAUSE FOR COST PLUS OR CATALOG ORDERS. bibliotheca may audit orders placed to ensure contract pricing is applied consistently to all orders. If an audit is conducted, bibliotheca will perform a statistical sampling of all orders (“Sample”) placed through Seller. The percent of error from actual price paid to contracted price for the Sample will be applied to the total purchase value for all orders placed during the Agreement time period. The party found to have benefited from the error will pay the difference to the other party within 30 days of audit conclusion. Seller will be provided details of the evaluation. Seller agrees to fully cooperate with bibliotheca during an audit and to provide bibliotheca with all relevant documents necessary to perform such audit.

37. OBLIGATIONS FOR SPECIAL ORDERING METHODS.

The products purchased under the Schedule Agreement may change throughout the life of the contract as conditions change. It is agreed and understood that the quantities forecasted are only estimates and do not imply a firm commitment on behalf of Buyer. Blanket/Framework Orders are based on estimated dollar values of Buyer spending (Estimated Amounts). Buyer has no obligation to purchase or satisfy the Estimated Amounts. Seller must notify Buyer in writing of potential or actual exceeding of the Estimated Amount in order to obtain appropriate authorization and approval of the increase in Estimated Amount. Buyer has no obligation to pay for Goods or Services to the extent the costs exceed the Estimated Amounts.

38. RECORD RETENTION.

bibliotheca and its representatives may access Seller’s facilities to audit and inspect materials, processes, and records, including certificates of conformance, connected with Goods supplied to bibliotheca and its customers. The Seller shall retain verification and compliance records related to the Goods including, but not limited to test data, analyses and reports (“Records”) for no less than seven (7) years from date created. Upon bibliotheca’ written request, all Records shall be readily accessible to bibliotheca. If the Seller delegates verification activities of the Goods to a sub-tier supplier, the requirements for delegation shall be defined by the Seller and Seller shall maintain a record of all delegations. Any changes to the materials or workmanship of the Goods made after the effective date of the purchase order shall be reported to bibliotheca for written approval. Seller shall flow down to their sub-tier suppliers any applicable bibliotheca requirements as defined in the purchasing documents.

39. SEVERABILITY. If any provision of this Order is declared invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

40. ASSIGNMENT; NO WAIVER.

Seller may not assign this Order or any of its rights or obligations hereunder without Buyer’s prior consent and any assignment without such consent shall be null and void. A waiver of any default hereunder or of any term or condition of this Order shall not be deemed to be a waiver of any other default or any other term or condition.

41. NOTICES.

All notices and other communications relating to this Order, including consents, shall be in writing and shall be addressed to Seller or Buyer at the addresses set forth on the face side of this Order and shall be considered given when (a) delivered personally, (b) sent by confirmed facsimile or email, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.

42. SURVIVAL OF OBLIGATIONS.

Any obligations and duties which by their nature extend beyond the expiration or termination of this Order shall survive the expiration or termination of this Order.

43. GOVERNING LAW; DISPUTE RESOLUTION.

This Order shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflict of law rules. In the event a dispute shall arise between the parties to this Agreement, it is hereby agreed that the dispute shall be referred to United States Arbitration and Mediation for arbitration in accordance with United States Arbitration and Mediation Rules of Arbitration. The arbitrator’s decision shall be final and binding and judgment may be entered thereon. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with arbitrator’s award, the other party is entitled of costs of suit including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.

The District Court of New Castle County, Delaware or the United States District Court for the District of Delaware shall have exclusive jurisdiction and venue over all controversies arising out of or relating to this Order. Seller and Buyer agree that the UN Convention on Contracts for the International Sale of Goods shall not apply to the terms and conditions of this Order.