Under this Supplier Purchase Order (“SPO”), the EXP legal entity specified on this SPO (“we,” or “us”) agrees to purchase and you agree to sell the goods and services listed on this SPO. You may accept this SPO by informing us or beginning to perform under it, whichever you do first. You cannot change the terms of this SPO and we reject any terms you propose on your forms or otherwise.
- PRICE. You will sell to us at the price stated on this SPO. If no price is stated, the price will be the lower of (a) the last price you charged or quoted us or (b) the lowest market price while you performed under this SPO.
- PAYMENT. Payment terms are 30 days from date of statement. You will not bill us for goods until you have delivered them, nor for services until you have performed them. The payment terms time-period on this SPO will begin once we receive acceptable goods and services or a correct tax invoice, whichever is later. Your tax invoice must show the SPO number. We may withhold disputed amounts under this SPO until the dispute is resolved, and we may offset any amounts you or your affiliates owe us.
- OBLIGATIONS. You will ensure that all goods (including their packaging) and services will: (a) comply with our specifications (or your specifications that we have approved) and conform to all samples approved; (b) be free of defects, correctly labelled, made with new materials, and be of good quality and workmanship; (c) not infringe, nor will our use of them infringe, anyone’s intellectual property rights or any other rights; (d) be performed diligently and in a professional and workmanlike manner. You will ensure that you and the goods and services comply with: (i) all applicable laws, regulations, and industry standards of the countries in which the goods are delivered or services are performed and/or will be used (provided we have advised you of those countries). You must tell us immediately if you learn of any potential quality, safety or labelling problem with the goods and services or any potential violation of your obligations in this SPO. You hereby assign to us any warranties related to the goods and services, or if you cannot assign them, you agree to make claims under them on our behalf at our request. You will ensure that your employees, agents, and subcontractors comply with this SPO and, when on our premises, our quality, safety and security requirements.
- REJECTION. We will inspect goods and services within a reasonable time upon delivery and notify you of any non-compliance that exists and you will not claim forfeiture of our warranties in case of delayed inspection and notification. We may at our sole discretion reject and return to you at your expense, all or any part of the goods delivered in excess of the quantity ordered and/or which do not conform to the SPO or your above obligations. In such a case you will, at our discretion, deliver replacement goods or services that conform to the SPO and your obligations within a reasonable time, or refund us in full, or give us an appropriate discount. At our discretion we may also purchase substitute goods or services at your cost. You will also compensate us for any losses or damages we incur in connection with any of the above. You will bear any costs we incur in connection with the delivery of replacement goods and services including transportation, removal, examination, installation, etc. Regardless of our obligations you are responsible for testing, inspection, quality control, and of providing certificates of authentication if so required.
- CHANGES AND CANCELLATION. Before you deliver the goods or perform the services, we may request changes. If we demonstrate that a change will reduce your costs or if you demonstrate that a change will increase your costs or affect your ability to complete this SPO on time, we will negotiate a fair adjustment to the price or schedule. We may cancel this SPO with respect to any goods not yet delivered or services not yet performed by notifying you. After we notify you, you will take all reasonable steps to minimize costs due to our cancellation. As your exclusive remedy, we will pay you for your unavoidable costs incurred before receiving our notice (less any savings realised from our cancellation) that you can document to our reasonable satisfaction.
- DELIVERY OF GOODS. Unless specified otherwise you will deliver the goods to us as stated in this SPO under Incoterms 2010. If the delivery terms are not specified, they will be DDP to our “deliver to” location stated in this SPO. If a fix delivery date or term is agreed for this SPO, time is of the essence and if you deliver the goods or perform the services delayed, we may cancel the SPO and will not pay for goods not delivered or services not performed at the promised time. We may purchase substitute goods or services at your cost and you will compensate us for any other loss we incur. You will deliver on weekdays during our normal business hours. You will properly label all units with your name, description of goods, SPO number and if applicable “best before date” (if applicable) and any other identifying information we require. You will provide accurate and complete information on all shipping and customs documents, including a description of the goods, country of origin and manufacture, currency, delivery terms and the actual manufacturing site and package list.
- INDEMNIFICATION. You will indemnify, defend and hold us (and our affiliates, employees, and agents) harmless from any and all losses, damages, fines, penalties, and expenses (including reasonable legal fees) arising from third party claims resulting from actual or alleged breaches of this SPO, negligent acts or omissions, or wilful misconduct by you or your employees, agents, or subcontractors.
- INSURANCE. You will maintain, at your cost, commercial general liability insurance covering your obligations under this SPO per occurrence and in the aggregate. If your employees will be present on our premises, you will also maintain, at your cost, worker’s compensation or local equivalent coverage as and in amounts required by applicable law, and motor vehicle third party liability coverage. You will ensure that your carrier waives rights of subrogation against us.
- DISPUTE RESOLUTION AND GOVERNING LAW. If the parties cannot resolve a dispute regarding this SPO through good faith negotiation, it will be resolved by decision of the commercial courts of the country in which we (or our buying branch) have our registered office and the law of that country will apply. The Vienna Convention on the International Sale of Goods will not apply.
- UNCONTROLLABLE EVENTS. If either party is unable to comply with this SPO because of events beyond its reasonable control, that party will promptly notify the other in writing and will make reasonable efforts to restore its ability to perform within 10 days. If the inability to perform continues for more than 10 days, the other party may cancel this SPO immediately, without costs or penalty, by giving written notice to the party unable to perform. Unexpected cost increases caused by events or changing market conditions, and labour strikes, work slowdowns, or other job actions at your facility are not uncontrollable events.
- AUDITS. We may audit any of your facilities and records involved with this SPO to evaluate your quality, procedures and compliance with specifications (“Quality Audits”), your compliance with our Corporate Social Responsibility (“CSR”) Policies (“CSR Audits”), and to verify that pricing, pass-through costs, reimbursable expenses, or other financial provisions conform to this SPO (“Financial Audits”). We may conduct Quality and Financial Audits ourselves or through third-party representatives that we select or that you select from our pre-approved list, and you will not request any auditor to sign an additional agreement in order to conduct the audit. We may also require that you complete a questionnaire either in lieu of or in advance of an audit, or that you register with and submit information to a third-party that we have selected to manage audit information. For Quality and CSR Audits, you will cooperate with our reasonable efforts to assess your compliance. We may require re-audits periodically according to our risk assessment. If you have violated this SPO, you will immediately take corrective actions that we reasonably require, and we or our representative may audit your facility or records as often as reasonably necessary to verify correction. For Quality and CSR Audits, we will bear our own internal costs and you will bear all other audit costs (including those of the third-party auditors). For Financial Audits, we will bear our own internal costs and the cost of the auditors, unless we discover you have violated this SPO, then you will reimburse our costs. If you refuse any audit, we can withhold payment and/or we may cancel the SPO.
- CONFIDENTIAL INFORMATION. Any non-public information that you learn about us in connection with this SPO, including the SPO itself, is our confidential information and you may not disclose it to any third party. You may only use our confidential information to perform under this SPO, and may share it only on a need-to-know basis with your employees. We own the confidential information and you must return it and all copies to us or dispose of it in a manner approved by us if we request.
- ASSIGNMENT OF INTELLECTUAL PROPERTY RIGHTS. If you or your permitted sub-contractors design or develop work which could be subject of intellectual property rights for us all intellectual property rights, including trademarks, copyright, patent and design rights shall belong to, and automatically vest in us (as legally possible) and you will, at our request and expense, execute or procure the execution of such confirmatory assignments as we may require.
- TAXES. Unless both parties agree otherwise in writing, each party will be responsible for its own respective taxes as required by law. If you are required to charge tax (e.g. sales tax) or we are required to withhold tax, then the required party will give the other the opportunity to demonstrate (and document) how such charge or withholding may be mitigated (for example, by providing a sales tax exemption certificate).
- CORPORATE SOCIAL RESPONSIBILITY. You will comply with the following in performing under this SPO:
(a) Forced Labour. You will not use any forced labour, which means any work or service performed involuntarily under threat of physical or other penalty. You shall respect the freedom of movement of your workers and not restrict their movement by controlling identity papers, holding money deposits, or taking any other action to prevent workers from terminating their employment. If workers enter into employment agreements with you, workers should do so voluntarily.
(b) Child Labour. You will not directly (or indirectly through the use of your subcontractors) employ any children under the age of 18 years of age unless legal, necessary, and the following are met:
(i) You will comply with the minimum employment age limit defined by national law or by International Labour Organization (“ILO”) Convention 138, whichever is higher. The ILO Convention 138 minimum employment age is the local mandatory schooling age, but not less than 15 years of age (14 in certain developing countries), subject to exceptions allowed by the ILO and national law.
(ii) You will ensure that employees working in facilities that are manufacturing or packaging our finished products, serving as temporary employees to us, or present at our facilities, are at least 15 years of age (and no exceptions allowed by the ILO or national law will apply).
(iii) You must demonstrate that their employment does not expose them to undue physical risks that can harm physical, mental, or emotional development.
(c) Diversity and Inclusion. You will hire, compensate, promote, discipline, and provide other conditions of employment based solely on an individual’s performance and ability to do the job (except as required under collective bargaining agreements). You will not discriminate based on a person’s race, sex, age, nationality, marital status, ethnic origin, or any legally protected status.
(d) Harassment and Abuse. You will provide a workplace free from harassment, which can take many forms, including sexual, verbal, physical or visual behaviour that creates an offensive, hostile, or intimidating environment.
(e) Safety and Health. You will (i) endeavour to provide safe working conditions, (ii) provide your employees with appropriate protection from exposure to hazardous materials, and (iii) provide your employees with access to potable water and clean sanitation facilities.
(f) Working Hours and Compensation. Within the bounds of normal seasonal and other fluctuations in business requirements, you will (i) maintain a reasonable overall pattern of required working hours and days off for your employees so that total work hours per week do not regularly exceed industry norms; (ii) pay fair and timely compensation, including any required premium payments for overtime work; and iii. advise new employees at the time of hiring if mandatory overtime is a condition of employment.
(h) Disciplinary Practices. You will not use corporal punishment or other forms of mental or physical coercion as a form of discipline.
(i) Business Integrity. You will promote honesty and integrity in your business conduct by raising ethical awareness among your employees and providing direction and education on ethical issues. Further, you will not: pay or accept bribes, arrange or accept kickbacks, or participate in illegal inducements in business or government relationships.
(j) Environment and Sustainability. You will work to continuously improve your environmental performance by setting and then working toward quantifiable goals that reduce the environmental impact of your activities.
- ANTI-BRIBERY. You will not offer or pay, directly or indirectly, money or anything of value for or on behalf of us (including our affiliates) to a Government Official for the purpose of obtaining or retaining our business or obtaining a business advantage for us or to assist us in directing business to any person. “Government Official” includes officials or employees of government, state-owned businesses, international organisations, or political parties, political candidates, or any person otherwise acting in an official capacity for or on behalf of a government entity or international organisation. You will not offer or pay, directly or indirectly, money or anything of value for or on behalf of us (including our affiliates) to any other person or legal entity for any illegal purpose. If we have reason to believe that a breach of any of the representations in this clause has occurred or may occur, we may withhold further payments under this SPO until such time as we have received confirmation to our satisfaction that no breach has occurred or will occur. We may cancel this SPO immediately if we conclude, in our sole opinion, that you have breached any representation in this clause or that a breach is substantially likely to occur.
- SUB-CONTRACTING AND ASSIGNMENT. You will not sub-contract or assign any of your rights or obligations under this SPO without our prior written approval, which we may not unreasonably withhold. We may freely assign all or any portion of this SPO without your consent.
- INDEPENDENT CONTRACTOR. This SPO does not create a partnership or joint venture between the parties nor confer on any person who is not a party to this SPO any right to enforce any term of this SPO. Each party is an independent contractor, has no authority to bind the other party, and is solely responsible for its respective employees and subcontractors.
- SEVERABILITY. If any part of this SPO cannot be legally enforced, then the parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the parties’ intent as expressed in the SPO.