Terms and Conditions of Sale-US - Luxfer MEL Technologies

Definitions and interpretation

LUXFER MEL TECHNOLOGIES, part of MEL CHEMICALS INC. (“Buyer”)
Terms and Conditions of Purchase (“Conditions”)
THESE CONDITIONS APPLY TO THE PURCHASE ORDER SUBMITTED BY THE BUYER (“ORDER”) AND FORM PART
OF THE CONTRACT FOR THE PURCHASE OF MATERIALS AND/OR SERVICES (AS DEFINED BELOW) BETWEEN
THE BUYER AND THE SUPPLIER NAMED IN THE ORDER (“SELLER”). ANY PROPOSAL OR DOCUMENT FROM
SELLER THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT SEEK TO VARY ANY OF THE CONDITIONS
ARE OBJECTED TO AND DISALLOWED.

BASIS OF CONTRACT. 1.1 The Order constitutes
an offer by the Buyer to purchase materials and/or
services in accordance with these Conditions. BUYER
RESERVES THE RIGHT TO REVOKE THE ORDER,
WITHOUT NOTICE, AT ANY TIME PRIOR TO ITS
ACCEPTANCE. THE ORDER SHALL BE DEEMED
AGREED TO AND ACCEPTED BY SELLER on the
earlier of (a) written acknowledgement of the Order or (b)
Seller doing any act consistent with fulfilling the Order, at
which point the contract between the Buyer and Seller
shall come into existence (“Contract”).
1.2 Seller shall comply with the terms of the Order,
which terms include the following;
(a) these Terms and Conditions of Purchase;
(b) requirements stated or expressly incorporated
therein by reference on the Order;
(c) descriptions, drawings, planning, quality
requirements, instructions, and specifications
provided or specified by Buyer in writing from time to
time; and
(d) if the Order is issued in support of a “Government”
procurement, the terms set forth in the Buyer’s U.S.
Government Contracts Terms and Conditions, which
are available at the following link:
https://www.luxfermeltechnologies.com/wpcontent/uploads/2019/05/TC-GovernmentContracts-May-2019.pdf and/or attached hereto.
WARRANTY. Seller warrants and represents that
with respect to all materials, supplies and equipment set
out in the Order (herein collectively referred to as
“materials”) delivered hereunder: (i) title shall be good,
merchantable, rightful and the materials free of any
security interest, lien or encumbrance; (ii) materials will
be free from defects in material and workmanship, be of
quality, size, description and dimension required by
Buyer, and will meet the specifications set out in the
Order; and (iii) the materials, the process by which they
are made, the use for which they are designed by Seller
and Buyer’s use of the materials will not infringe any
patent, trademark, copyright, or other rights of any third
parties (“Intellectual Property Rights”). Seller further
warrants and represents that with respect to all services
set out in the Order (herein collectively referred to as
“services”) furnished hereunder: (i) the services will be
performed in a professional and workmanlike manner by
qualified Seller representatives; (ii) the services will be
performed in accordance with the highest standard in the
industry and all applicable laws; and (iii) the performance
of the services will not infringe any third party’s
Intellectual Property Rights. These express warranties
shall not be deemed waived by reason of either or both
the receipt of the materials and services, and payment
therefore by Buyer.
COMPLIANCE WITH LAWS; STANDARDS AND
TESTING. 3.1 In performing its obligations under the
Contract, Seller shall comply, and ensure that all of its
subcontractors and suppliers comply, with all applicable
state, federal and local laws, regulations, ordinances,
and rules (“Laws”), as well as all applicable Seller
corporate policies including, without limitation, its Data
Protection Policy.
3.2 Without limitation to clause 3.1, Seller represents
and warrants that:
(a) all materials furnished hereunder, and Seller’s
manufacturing thereof, comply with all Laws, and, if
applicable, each chemical substance sold hereunder has
been reported to the US Environmental Protection
Agency (EPA), as required by the Toxic Substances
Control Act and regulations for inclusion in the inventory
of chemical substances compiled by the Administrator of
the EPA.
(b) it shall treat materials prior to shipment to Buyer
in accordance with testing standards requested by
Buyer, and shall furnish Buyer certifications in support
thereof.
(c) it shall take appropriate measures to prevent the
use, purchase, or sale of counterfeit or suspected
unapproved goods (being any item misrepresented as
having been designed and/or produced under an
approved system or other acceptable method). Further,
Seller shall have a process in place to (i) ensure the
sourcing of safe, reliable goods, (ii) mitigate the risk of
counterfeit goods from entering into its system, and (iii)
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notify the Buyer’s quality department or other
appropriate individual within Buyer’s organization.
(d) if the materials comprise raw materials, the Seller
shall: (i) notify the Buyer of changes in product and/or
process definition and, where required, obtain
organizational approval; (ii) allow rights of access for the
Buyer, its customers, and regulatory authorities to
relevant facilities and applicable records; (iii) flow down
to sub-tier suppliers the applicable requirements in the
purchasing documents, including key characteristics
where required; and (iv) maintain records of quality
related information pertaining to the Order for a minimum
of 15 years.
3.3 In accordance with clause 3.1, Seller shall
grant Buyer entry to its facilities to determine and verify
Seller’s compliance with Laws, Seller’s processes, and
the quality of material and the work intended for
incorporation into the goods at all production stages.
3.4 Without limitation to clause 3.1, Seller
acknowledges that that Orders from Buyer may be DPAS
rated. Buyer and Seller agree that these Orders shall be
identified by a priority rating consisting of either DX or
DO. DPAS rated Orders take precedence over all
unrated Orders, as necessary, to meet required delivery
dates. DX rated Orders take precedence over DO rated
Orders. Seller agrees to give priority to said Orders as
set forth herein.
3.5 Seller shall ensure that at all times it has,
and that it shall maintain, all the licences, permissions,
authorizations, consents, and permits that it needs to
carry out its obligations under the Contract.
3.6 If Seller becomes aware of any breach of
this clause 3, it shall notify the Buyer immediately in
writing.
INDEMNITY. Seller will defend, indemnify, and hold
harmless Buyer, its affiliates, vendors, and their officers,
directors, shareholders, employees, and agents from
and against any and all loss, liability and expense by
reason of (i) any actual or alleged violation of Laws, (ii)
any actual or alleged infringement of Intellectual
Property Rights, (iii) injury, death, or property damage
resulting, in whole or in part, from any negligent act or
omission on the part of the Seller or which may result
from the installation, operation, or use of the materials or
services furnished hereunder, (iv) a defect in the
manufacture or design of the materials supplied
hereunder, or (v) any breach or alleged breach by Seller
of any representation, warranty, or other provision of
these Conditions. Upon notification from Buyer, Seller
shall promptly assume full responsibility for the defense
of any suit or proceeding which may be brought against
Buyer or any of its subsidiaries, affiliated companies,
agents, and vendors in connection with the indemnities
set forth herein. Seller shall not, without the prior written
consent of the Buyer, enter into any compromise or
settlement that commits the Buyer to take, or to forbear
to take, any action. Buyer reserves the right to control
any such suit or proceeding. Seller shall further
indemnify and hold Buyer, its subsidiaries, affiliated
companies, agents, and vendors harmless from any and
all expenses, losses, claims, royalties, profits, and
damages, including court costs and attorneys’ fees,
resulting from the bringing of such suits or proceedings
or the threat thereof and from any settlement, decree or
judgment therein.
COVER; DELIVERY. 5.1 The dates of delivery and
quantities specified herein are of the essence for the
Order, and delivery must be effected within the specified
time period or as otherwise agreed in writing by the
parties. If deliveries are not made on time and in the
quantities specified, Buyer reserves the right to cancel
the Order and to purchase the materials and/or services
elsewhere and hold Seller accountable therefore.
5.2 Seller shall cooperate with Buyer in respect
to all customs formalities applicable to the import or
export of the materials, shall be responsible for
determining proper import or export classifications, and
shall provide Buyer documentation to Buyer’s
satisfaction for such classifications.
PACKAGING. Buyer’s purchase order number must
be shown on all packing cases and invoices. All
materials shall be packed for shipment according to
Buyer’s written instructions and, in any event, in a
manner sufficient to ensure the materials are delivered
in good and undamaged condition. Buyer shall not
(unless otherwise agreed in writing) be required to return
any packaging material. Any return of such packaging
material shall be at Seller’s expense.
PRICES. Unless otherwise agreed to by the parties
in writing, orders shall not be filled at prices higher than
those prices set out in the Order. Unless otherwise
agreed to by the parties in writing, prices include
packaging, labelling, crating, taxes, and duties. Unless
otherwise agreed to by the parties in writing, all prices
include shipping, and delivery will be Cost, Insurance
and Freight (CIF). (based on ICC 2010 standards)
INSPECTION AND REJECTION. Materials and
services are subject to inspection, test, and acceptance
by Buyer and the ultimate purchaser. Buyer shall have a
reasonable number of days from the date of arrival to
inspect the materials and review the services and notify
Seller of any non-conformity to the Order (including
quantity, quality, delivery dates, and any other
specifications set out in the Order). Such inspection may
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not occur until final sale of the materials or services to
Buyer’s customers. Buyer reserves the right to reject any
material or service, even after delivery and inspection at
customer’s site, which does not fulfil the specifications of
the Order and to (i) return rejected materials to Seller at
Seller’s risk and expense for full credit at the Order price;
(ii) to require Seller at Seller’s expense to replace
rejected materials, or reperform rejected services; or (iii)
consider the Contract breached as to the rejected
quantity or service and cancelled as to any unfulfilled
portion of the Order. The remedies set out above are
without prejudice to the Buyer’s right to claim damages
for any other costs, loss, or expenses incurred by the
Buyer which are in any way attributable to the Seller’s
failure to carry out its obligations under the Contract, and
Seller is not relieved of the responsibility imposed by this
clause, either as to proper packaging, quantity of
materials, quality of materials or services, or
specifications, by reason of acceptance by Buyer.
CHOICE OF LAW. The Contract shall be construed,
and the respective rights and duties of Buyer and Seller
shall be determined, according to the laws of the State
of New Jersey without giving effect to its principles of
conflicts of laws. The UN Convention on Contracts for
the International Sale of Goods shall not apply to this
Agreement.
PAYMENT AND INVOICING. Invoices and bills of
lading showing full routing should be dated and mailed
at the time of shipment and a separate invoice must be
made for each destination showing point of shipment and
how the goods were shipped. Invoices bearing
transportation charges must be supported with attached
original receipted transportation bills and, in the case of
consolidated carload shipments, must show weight and
rate. The discount period, if any, stated in the face of the
purchase order shall be calculated from the date of
receipt by Buyer of a proper invoice from Seller.
CONFIDENTIALITY. The parties anticipate that
Seller will obtain and have access to confidential
information (“Confidential Information”) of Buyer as a
consequence of this Contract. Seller agrees, on behalf
of itself and its officer, employees, agents and all other
persons acting on or for its behalf, (i) to keep all
Confidential Information of Buyer confidential and not to
disclose such Confidential Information, either directly or
indirectly, to any third party, and (ii) not to use any such
Confidential Information for any purpose other than for
performance of the transaction contemplated by this
Contract without the prior written consent of the nondisclosing party. Seller shall insure that all officers,
employees, agents and other persons acting on or for its
behalf, have agreed to be bound by these obligations of
confidentiality, and shall cause such individuals to
execute such further agreements of confidentiality as
Buyer may require. These obligations shall not apply to
any: (i) information that Seller knows about the other
prior to the date of the Order except any information
which is the subject of unexpired confidentiality
obligations; (ii) information that is publicly known, or
becomes publicly known, through no breach of a duty of
confidentiality owed to Buyer; (iii) information that is
rightfully obtained by Seller from any third party who
owes no duty of confidentiality to Buyer; (iv) information
that is independently developed by or for Seller without
reference to or knowledge of Confidential Information
made hereunder, or (v) is otherwise necessary to
disclose in order to comply with applicable law, but only
to the extent that any such disclosure is reasonably
necessary and Seller has provided Buyer with sufficient
advance notice of such disclosure to reasonably permit
Buyer to contest the disclosure. Seller agrees to take all
reasonably necessary steps, and to prepare and execute
all necessary documents, to protect and prohibit the
disclosure and use of Confidential Information of Buyer
in contravention of this Contact, using at least the same
care as it uses to maintain the confidentiality of its
confidential information, and no less than reasonable
care. In the event of a breach or threatened breach by
Seller of its confidentiality obligations hereunder, Seller
acknowledges that Buyer will suffer irreparable harm
and, as such, in addition to any and all other rights which
may be available, shall have the right of injunctive relief
and other appropriate equitable remedies to restrain any
such breach or threatened breach, without the obligation
to post a bond. Upon request, Seller shall immediately
return to Buyer the originals and all copies of any
Confidential Information of Buyer.
ASSIGNMENT. Seller may not assign the Contract
or any of Seller’s obligations hereunder without Buyer’s
written consent.
INSURANCE. Seller shall maintain at its own
expense at all times while performing hereunder
occurrence-based commercial general liability insurance
and product-liability insurance with a reputable and
financially responsible carrier(s) satisfactory to Buyer for
coverage in amounts not less than USD 1 million per
occurrence, USD 10 million in aggregate, respectively,
professional liability insurance in amounts not less than
USD 2 million per occurrence and USD 5 million in
aggregate, respectively and all other insurance required
by applicable law. Seller shall also maintain workers
compensation and employers liability insurance as
required by applicable state law. Seller shall furnish
insurance certificates as directed by Buyer, satisfactory
in form and substance to Buyer, showing the above
coverages, and providing for at least 10 days prior
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written notice to Buyer by the insurance company of
cancellation or material modification.
SELLER’S REPRESENTATIVES. If Seller’s
employees, subcontractors, consultants, or other
representatives under Seller’s control perform any
services at Buyer’s premises or at Buyer’s direction at
the premises of others, (i) such persons shall comply
with all rules and regulations of such premises and (ii)
Seller shall keep materials and the premises on which
the work is performed free and clear of all liens for
material and labor incident to the performance of Seller’s
services hereunder.
TERMINATION. 15.1 Buyer may terminate the
Contract, in whole or in part at any time before delivery
with immediate effect by giving the Seller written notice,
whereupon the Seller shall discontinue all work on the
Order. Buyer shall pay Seller fair and reasonable
compensation for any work-in-progress at the time of
termination, but such compensation shall not include
loss of anticipated profits or any consequential loss.
15.2 Without limiting its other rights or remedies, the
Buyer may terminate the Contract with immediate effect,
and without any liability on Buyer’s part by giving written
notice to the Seller if: (a) the Seller commits a material
breach of any term of the Contract and (if such breach is
remediable) Seller fails to remedy that breach within 7
days of being notified in writing to do so; or (b) any
proceeding, voluntary or involuntary, in bankruptcy or
insolvency is brought by or against Seller, or a receiver
or assignee is appointed for the benefit of creditors, with
or without Seller’s consent.,
BUYER’S PROPERTY. All tools, dies, patterns,
designs, molds, drawings, specifications, and other data
or papers, and the like furnished by Buyer to Seller in
connection with this order by Buyer remains the property
of Buyer. In the event materials furnished by Buyer to
Seller include any intellectual property of Buyer, Seller is
granted a non-exclusive, non-transferable, nonsublicenseable and non-assignable license required only
for the production of materials under this Order, and shall
use Buyer’s intellectual property only for that purpose.
Except for this license, no right, interest, ownership or
privilege of use of Buyer’s intellectual property shall inure
to the benefit of Seller.
INTELLECTUAL PROPERTY. 17.1 Buyer retains
ownership of all right, title and interest in and to any and
all information and materials delivered by it to Seller
(“Buyer Materials”). Buyer grants to Seller a limited,
non-exclusive, non-transferable, royalty-free license,
without the right to grants sublicenses, to use the Buyer
Materials solely for purposes of performing its obligations
under this Contract.
17.2 Seller agrees that any ideas, designs,
inventions, discoveries, computer programs or code,
improvements, written materials, or the like that Seller
may conceive, make, invent, produce, develop, reduce
to practice or suggest in the performance of this Contract
(collectively, the “Technology”), shall be the absolute
property of Buyer, and shall be promptly disclosed by
Seller to Buyer. Seller further agrees that any work of
authorship prepared by Seller in the performance of this
Contract (each, a “Work of Authorship”), shall be a
“work made for hire” and Buyer shall be the sole author
of such Work of Authorship and the owner of all rights
comprised in the copyright of such Work of Authorship.
Seller hereby assigns to Buyer exclusively throughout
the world all right, title and interest (choate or inchoate)
in and to: (i) the Technology and all precursors, portions
and works-in-progress with respect thereto; (ii) all
information, know-how, and materials relating thereto or
to the development, support or maintenance thereof, (iii)
the Works of Authorship, to the extent not deemed
“works made for hire” by operation of law; and (iv) all
copyrights, patent rights, trade secret rights, trademark
rights and associated goodwill, mask works rights, suigeneris database rights, and all other intellectual and
industrial property rights of any sort and all contract
rights and causes of action (past, present and future),
incorporated or embodied in, or related to, any of the
foregoing. Seller shall itself, and shall cause its
employees, agents, officers and others providing
services hereunder to, execute such confirmatory
intellectual property assignments in favor of Buyer as
Buyer may require.
AMENDMENT AND MODIFICATION. No change
to the Contract is binding upon Buyer unless it is in
writing, specifically states that it amends the Contract,
and is signed by an authorized representative of Buyer.
JURSDICTION; VENUE. Any dispute, controversy
or claim arising out of or related in any way to the
Contract, including but not limited to, the validity, scope,
and enforceability of this Contract, which cannot be
amicably resolved by the parties, shall be subject to the
jurisdiction of the state and federal courts located in the
State of New Jersey. Seller consents to the exclusive
jurisdiction of such courts, and agrees to waive any
objection to the venue of such courts. The prevailing
party in any such proceeding shall be entitled to
reimbursement from the other party of the out-of-pocket,
costs, expenses and fees (including reasonable
attorneys’ fees) incurred in connection with such
proceeding.
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NOTICE. For the purpose of any notice required to
be given by this contract or under any applicable
provisions of the Commercial Code or pursuant to other
pertinent law, notice to Buyer shall be sent to:
LMT.USProcurement@Luxfer.com.
EXPORT CONTROL. Provided items and/or
technical data herein may be subject to export control
under the International Traffic in Arms Regulations
(ITAR) or the Export Administration Regulations (EAR).
Such data should not be disclosed, exported, or
transferred in any manner to any foreign person or any
foreign country without prior written approval of the
Office of Defense Trade Controls, U.S. Department of
State, the Bureau of Industry and Security, or the U.S.
Department of Commerce. All suppliers of the Buyer
shall be required to have a documented ITAR
Compliance Program.
ETHICAL BEHAVIOR. In performing its obligations
under the Contract, Seller shall conduct its business in
an ethical manner and hold its workforce, employees,
contractors, and agents accountable for ethical behavior.
Seller shall ensure that its workforce, employees,
contractors, and agents are aware of their contribution to
product conformity and safety. Buyer reserves the right
to request training documentation from Seller in order to
verify that ethical behavior expectations are being
communicated to Seller’s workforce, employees, and
agents.