UNITED ACCESS
STANDARD PURCHASE ORDER TERMS AND CONDITIONS
1. Definitions. As used herein, "United Access" means "United Access LLC," who is the buyer of the Products referenced herein and is the party authorized to alter, modify or change provisions of the Order (defined herein); "Seller" means the party identified on the Order as the seller of the Products; "Order" means the purchase order between United Access and the Seller which incorporates these Terms and Conditions, including all documents, exhibits and attachments referenced herein and in the Order; and "Products" means the goods and/or services identified on the Order.
2. Controlling Terms. These terms and conditions control, and any different or additional terms and conditions contained in any other writing of the Seller, to include but not limited to Seller’s quotation, are hereby rejected by United Access and shall not in any way be incorporated into the agreement between the parties, unless specifically agreed to in writing by United Access. In the event of a conflict between these terms, the information on the face of this Order, or any attachments to the Order, the terms on the face of the Order shall take precedence over these terms, and these terms shall take precedence over any other attachment. If the Order is issued in conjunction with a detailed contract between the parties, the terms of the detailed contract will take precedence over these terms. United Access may periodically update these terms and conditions and in such case will provide notice to Seller. United Access reserves the right to direct the sale and supply of the Products to other United Access locations or designated third parties (including, without limitation, other United Access affiliated entities) under this Order.
The initial term of the Order begins on the effective date and expires one year after such date. The Order will automatically renew unless a notice of non-renewal has been provided by either party thirty days prior to the expiration date. All terms and conditions, to include but not limited to pricing, remain in effect during the term. If Seller elects not to renew, it will, if requested by United Access: (i) work diligently with United Access to identify an alternative source of supply that is acceptable to United Access; and (ii) identify the Seller’s component-part and raw-material suppliers relating to the Product. United Access shall have the right to make one or more final bulk purchases in any quantity at United Access’s discretion.
3. Delivery. Time is of the essence in the performance of the Order. Seller shall make deliveries at such times and places and of such items and quantities as specified by United Access. Strict adherence to United Access's stated delivery schedule is a material condition of the Order. United Access will not accept over shipments at additional cost. Unless otherwise provided on the Order, the Products shall be delivered to United Access FOB United Access's facility at the address specified on the Order. Title to the Products shall pass to United Access upon delivery of such Products at such facility or, if otherwise identified in the Order, at United Access's designated point of delivery. Seller shall be responsible for all risk of loss or damage until such passage of title. If at any time it appears to Seller that any delivery schedule cannot be met, Seller shall notify United Access as soon as possible as to the causes thereof, the action being taken to mitigate such cause of non-delivery, and when delivery will be made. Seller shall, at its expense, take whatever reasonable action is necessary, with or without United Access's request, to meet such delivery schedules as set forth herein or to recover to the maximum extent possible any delay in meeting such delivery schedules. Notwithstanding such notice or mitigation by Seller, unless the delivery schedule is modified or waived by United Access’s Authorized Representative, Seller shall continue to bear the risk of any failure to meet the delivery schedule on a timely basis as provided herein. Seller shall provide all documentation, to include country of origin,
as specified by United Access and in order to comply with regulations, including USMCA duty draw back documentation.
4. Sub-Contracting. Suppliers shall not sub-contract any business without written consent from their United Access Purchasing representative.
5. Costs of Freight. Unless the Order designates that the price for the Product shall include the costs of freight, United Access will designate the carrier to be utilized by Seller and shall bear the cost of freight of the Product to United Access’s designated point of delivery. If the Order designates that the Seller is responsible for costs of freight, the Seller shall separately itemize its cost of freight and shall have responsibility for and bear the risk of selection of the carrier.
6. Quality and Conformance to Specifications. Supplier warrants that all Products or materials will conform to the specifications, representations, or descriptions specified in the Order, will be merchantable, and will be of quality material and workmanship, free from defect and fit for the purpose specified by United Access. In addition, Supplier acknowledges that Supplier is aware of United Access's intended use and expressly warrants that all Products which have been selected, manufactured, or assembled by Supplier, based upon United Access's stated use, will be fit and sufficient for the particular purposes intended by United Access. United Access may reject and hold at Supplier's risk and expense, Products which do not conform to applicable specifications, or descriptions, or which are defective in material or workmanship, or otherwise fail to meet the warranties for the Products. These warranties shall survive acceptance and shall run to United Access and United Access’s successors, assigns, customers, and users. To the extent United Access rejects Products as non-conforming, the quantities of such Products under the Order will automatically be reduced by the number of non-conforming items unless United Access notifies Supplier in writing otherwise. United Access is not responsible for payment to Supplier for rejected non-conforming Products. Moreover, payment by United Access for non-conforming Products shall not constitute an acceptance thereof, limit or impair United Access's right to assert any legal or equitable remedy or relieve Supplier's responsibility for defects. Without limiting any other rights United Access may have, United Access may, upon rejection and at its option, require Supplier: (i) to repair or replace at Supplier's expense, to include but not limited to transportation, removal, and
installation expenses, any Products or items which fail to meet the requirements of applicable specifications or descriptions or other requirements of the Order; (ii) to refund the price that may have been paid by United Access
for any such Products; or (iii) reimburse United Access for the purchase of substitute products from another supplier. In addition and without limiting any other remedy available to United Access, the costs incurred by United Access (including without limitation costs for re-working any of United Access’s vehicles, lifts or other products for which the Product was to be used or installed and for any production line stoppages) caused by any non-conformance of the Product shall be deemed to be a reasonably foreseeable consequential damage which is recoverable by United Access and for which Supplier shall be responsible.
7. Dispute Resolution. Any dispute as to such cause which cannot be resolved shall be submitted to United Access’s Authorized Representative and an officer or equivalent level representative of Seller with authority to resolve such dispute, who shall act promptly and in good faith to resolve such dispute. If such dispute cannot be resolved within a reasonable time, either party may give notice that the dispute process is terminated. In such event, either party shall be entitled to pursue any remedy available to such party.
8. Recall. Notwithstanding anything to the contrary in this Agreement, Seller shall indemnify United Access against all recall actions necessary to be taken due to a recall of Seller’s Product, either voluntarily or pursuant to the recommendation or direction of any state, federal or local agency. In the event United Access or Seller elect, either voluntarily or pursuant to recommendations or direction of any governing authority to recall any Product, such recall will be at the sole responsibility of Seller provided, however, that Seller shall not be responsible for recall actions and/or costs related to recalls where the issue relates solely to United Access’s provided drawing. United Access will cooperate in making available records and other information as are reasonably necessary to enable Seller to affect such recall. Seller shall be responsible for all necessary repairs, expenses, and modifications of recalled Product.
9. Tooling and Drawings. If the Order indicates that these Terms and Conditions shall govern tooling and drawings, then the provisions of this Section shall be in effect. Unless otherwise agreed in a writing signed by United Access’s Authorized Representative, United Access owns all tooling, molds, jigs, kits, and similar tangible items collectively, “Tooling”), all drawings, designs, prints, plans, specifications, and concepts (collectively, “Drawings”)
and all variations, improvements, enhancements, modifications, re-designs, derivatives, and reformats of the Tooling or the Drawings which United Access has supplied to Seller, either directly or through reimbursement, for use in connection with the production, assembly or manufacture of the Product, whether or not in the possession or control of Seller. United Access shall only be responsible for the tooling and drawing costs specifically enumerated on the Order and Seller shall fund all other costs. All Tooling and Drawings shall be used exclusively for United Access. In the event that Seller has contributed to any such item in any way, Seller shall be deemed to have assigned and transferred all right and interest therein to United Access in consideration of the Order and shall execute and deliver, and shall cause any of its employees, representatives or agents to execute and deliver, for no further consideration, such assignments or other documents as United Access may request to evidence and confirm such assignment and transfer. Seller shall immediately, upon United Access’s request, release the United Access owned tooling to United Access or its nominee. If Seller has purchased any of the Tooling or the Drawings, then upon request from United Access, Seller shall execute and deliver such bills of sale or other instruments as United Access may request to transfer to United Access all right, title and interest therein free and clear of all liens or claims of any other person. All such Tooling and Drawings shall be properly stored, used, maintained and repaired by Seller at its expense, shall be marked and identified as the personal property of United Access, shall not be subjected to any liens by the Seller, shall not be removed from the Seller’s premises without the prior written consent of United Access’s Authorized Representative, and immediately upon United Access’s request at the termination of the supplier relationship, shall be returned to United Access. If Seller is unable or unwilling to supply Products to United Access, then United Access shall have the right, at its sole option, to purchase from Seller any tooling owned by Seller and used in the manufacture of the Products, including but not limited to machinery and test equipment.
10. Inspection. United Access shall have the right to inspect the Products or materials during any stage of the manufacture, prior to delivery, upon delivery or within a reasonable time after delivery. Such inspection shall not constitute acceptance, shall not relieve Seller of responsibility for Products not in accordance with contract, or waive Seller’s responsibility for defects or warranty.
11. Changes. United Access reserves the right to make changes to the Order, including quantities, design, specifications, place of inspection, delivery or acceptance, by written instruction to the Seller. Only changes which will have a material adverse impact on the Seller is subject to Seller's consent, which will not be unreasonably withheld. Any changes may be made by mutual written agreement of United Access (acting by its Authorized Representative) and the Seller. Any attempted oral modifications to the Order shall not be binding upon the parties. In the event that such changes result in a change in the cost of Products ordered, the price of such Products shall be adjusted by mutual written agreement. United Access may cancel this Order, or any part, at any time upon written notice to Seller without liability except for payment to Seller for the cost of work in process as of the date of cancellation not to
exceed the greater of three (3) weeks of United Access’s forecasted Product requirements or six (6) weeks of United Access’s forecasted raw material inventory requirements.
12. Pricing and Payment. Pricing of the Products reflected in the Order shall be inclusive of, without limitation, all packing, shipping, insurance, taxes, levies, fees, excises, tariffs, duties or other governmental charges or expenses (collectively, “Costs”) imposed in connection with the Seller's obligations under the Order. Lead times and prices shall remain fixed through the term of this Order and shall not be subject to increase for any reason. Seller represents and warrants that all Costs have been paid and no Costs are unpaid that will result in a lien on the Products. Seller waives its right to any mechanic’s or any other lien for work done or material furnished hereunder, and agrees that no such lien will be asserted. Unless otherwise stated, all Prices are global and in United States Dollars.
Seller shall during the term of this Order provide United Access with Products that are competitive in terms of price, quality, delivery, and technical function. If United Access considers one or more of Seller’s Products to no longer be competitive, even though the Products are otherwise in accordance with the terms of the Oder, United Access shall supply Seller with information supporting its belief. Seller will have thirty (30) days to re-establish its competitive position to the reasonable satisfaction of United Access. If Seller is unable to re-establish its competitive position, United Access shall have the right to terminate this Order, in whole or in part.
13. Seller shall (i) promptly render, after delivery of the Products, correct and complete invoices to United Access with respect to such Order; and (ii) accept payment by check or, at United Access’s discretion, other commercially reasonable method of payment (including electronic transfer of funds). Seller shall provide United Access with all required information for the processing of payments by check, ACH or other electronic transfers, on which United
Access may rely for making such payments by any of such methods. Payment to Seller of the invoiced amount(s) with respect to any Products that have been accepted shall be due ninety (90) days from the date of a properly payable invoice and delivery of the Products. Given United Access’s payment process, any payments made by United Access within seven (7) business days subsequent to the Net 90 payment deadline shall be considered
timely. Invoices shall reflect prices and terms in accordance with the Order and no other conflicting or additional terms. United Access reserves any rights of set-off.
14. Aftermarket. In recognition of United Access’s ownership of IP and/or contribution of know-how, and/or contribution of trade secrets to the Products, Seller shall sell and supply the Products exclusively to United
Access while the Order is active and for a period of 20 years upon the Order termination. In the instance of a commercial off the shelf Product, the Partis may determine exclusivity in a separate agreement.
Seller hereby grants to United Access aftermarket remanufacture and re-conditioning support, as requested by United Access, to provide United Access with the best possible commercial opportunity for implementing and sustaining a high quality and cost-effective reconditioning program for the Products.
15. Cancellation for Material Breach. United Access reserves the right to cancel the Order, in whole or in part, without liability to United Access, if Seller: (i) refuses or fails to deliver the Products or any installment thereof strictly within the time specified herein or any extension thereof granted by United Access in writing; (ii) fails to comply strictly with any provision of or repudiates the Order or so fails to make progress to perform under the Order in accordance with its terms; (iii) makes representations which are untrue or misleading at the time they were made; or (iv) is liable for substantial, uninsured loss, theft or damage to the Products, Tooling, Drawings or other United Access materials while in
its possession.
16. Termination for Convenience. United Access may terminate the Order, in whole or in part, at any time for any reason by providing notice to Seller in writing. In such event, United Access shall pay Seller for Seller's actual costs incurred in the production of any Products which are part of an Order but are not yet delivered to United Access, not to exceed the greater of three (3) weeks of United Access’s forecasted Product requirements or six (6) weeks of United Access’s forecasted raw material inventory requirements, which shall be Seller's exclusive remedy for such termination.
17. Insolvency. If Seller ceases to conduct business, becomes insolvent, is insecure, subject to a take-over, bankrupt (involuntary or voluntary), is part of an assignment, placed in receivership or other similar proceeding then the Order may be terminated in United Access's sole discretion without liability. In the event Seller exists the business for the reasons described above or any other reason, Seller agrees that United Access shall have the right to purchase
assets dedicated to United Access’s Products. In such case and with respect to any Seller IP, Seller hereby irrevocably grants to United Access the worldwide right and license over the IP.
18. Good Title. Seller warrants good title to the Products, materials and parts covered by the Order, free and clear of all liens, claims or security interests of any kind.
19. Remedies. The rights and remedies reserved to United Access in the Order shall be cumulative and additional to all other or further remedies provided in law or equity. Any limitation or exclusion contained in or referenced in any writing of the Seller, including without limit any limitation on United Access’s right to recover consequential damages, is rejected and without effect unless agreed in writing signed by United Access’s Authorized representative.
In the event United Access suffers damages or reduction in price from its customers due to Seller’s delay or breach of this Order, Seller will reimburse United Access for such damage or loss of revenue, including without limitation, any attorney’s fees or litigation costs. If Seller fails to deliver the Products by the delivery date, United Access will, without limiting other rights or remedies, have the right to recover additional freight costs, including premium freight.
20. Assignment. Neither the Order, nor any of the rights or interests by Seller hereunder, may be assigned, delegated, transferred, or conveyed by operation of law or otherwise without the prior written consent of United Access.
21. Force Majeure. Any delay or failure of either party to perform its obligations hereunder shall be excused if, and to the extent that it is caused by an event or occurrence not reasonably foreseeable and beyond the
reasonable control of the party and without its fault, lack of due diligence, or negligence, limited to acts of God, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, inability to obtain power; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party within ten (10) days of such occurrence. A party shall not be excused simply because performance has become more expensive or more difficult. During the period of such delay or failure to perform by Seller and after prompt notice from Seller to United Access of the occurrence of such an event, United Access, at its option, may
purchase goods from other sources and reduce its supply from Seller by such quantities, without liability to Seller, or have Seller provide the Products from other sources in quantities and at times requested by United Access and at the price set forth in the Order. If requested by United Access, Seller shall, within ten (10) days of such request, provide adequate assurance that the delay shall not exceed thirty (30) days. If the delay lasts more than thirty (30) days, United Access may immediately cancel the Order without liability.
22. Notices. All notices required or permitted to be given under the Order shall be in writing and shall be deemed given upon personal delivery, upon receipt during normal business hours if given by facsimile with confirmation of receipt or by other electronic communication, upon delivery by overnight carrier, or upon the expiration of the second day after the date of deposit in the United States mail as registered or certified mail, return receipt requested, postage prepaid, addressed to the parties listed on the Order or their then current address if notice of such change of address has been given pursuant to this Section.
23. Communications. The parties acknowledge that communications between them in the ordinary course of business will occur through the use of electronic transmissions, including email and facsimile communications, and
that these may be initiated and received by the respective parties’ personnel at various functional levels. Notwithstanding the foregoing, to be effective, an Authorized Representative of United Access must sign (which includes an electronic signature) any amendment, modification or revision to this Agreement and any other writing as expressly provided herein. United Access’s Authorized Representative shall be such person so designated from time to
time by United Access in writing delivered to Seller and, in the absence of such writing, shall include any person holding the title of vice president of United Access or above. The parties acknowledge that they shall not be entitled to rely upon any verbal communication or any written or electronic communication which has not been signed by an Authorized Representative of United Access and an officer, manager or other agent of the Seller.
24. EDI Systems. Seller, at its expense, shall maintain an information system with sufficient functions and capabilities to participate in and interface with any electronic data interchange or similar communication system as United Access may establish and require of its suppliers.
25. Intellectual Property (IP) Ownership and Patent Indemnity. United Access retains all ownership of blueprints, drawings, media and data it may provide to Seller. If the purchase of Products by United Access requires development or design work, Seller hereby assigns any intellectual property right arising from such work to United Access. In the event Seller creates copyrightable material of any form pursuant to this Order, Seller agrees and hereby assigns United Access the sole ownership right. Seller shall undertake all acts necessary to perfect United Access’s ownership in such material. Seller warrants that all Products shall not violate or infringe on any patent, copyright, trademark, or proprietary interest of any other person. Notwithstanding the foregoing, if such intellectual property is deemed or alleged to infringe on the rights of others, Seller shall (i) defend, hold harmless and indemnify United Access, its successors, affiliates and customers against all claims, demands, proceedings, losses, suits, damages, liability and expenses (including reasonable attorneys' fees) arising out of or based upon any claim for actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, trade secret, or copyright by reason of the manufacture, use or sale of the Products, including infringement arising out of compliance with specifications furnished by United Access, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller's actions; (ii) waive any claim against United Access under the Uniform Commercial Code or otherwise, in any way related to any claim described in (i) above; and (iii) at United Access’s sole discretion, procure for United Access the right to continue the use of such Products, replace them with substantially equivalent non-infringing goods, modify the Products at Seller's expense so they no longer infringe should the manufacture, use or sale of the Products be made the subject of any such suit or claim as described in (i) above, or reimburse United Access for the purchase of alternative products. This section shall survive termination, cancellation or expiration of the Order.
26. Indemnification. Seller shall defend and indemnify United Access and its successors, assignees, affiliates, officers, shareholders, directors, employees, agents, dealers, distributors and customers (the "indemnitees"), and hold each of them harmless, from and against any claim, suit, loss, and expense (including reasonable attorneys' fees) or any liability whatsoever against or suffered by any of the indemnitees arising from or as a result of (i) the performance, actions or omissions of Seller or any of its officers, shareholders, directors, employees and agents (except for claims arising from the sole and exclusive negligence of United Access); (ii) for any property damage or bodily injuries (including but not limited to death or disease) of any person resulting from or attributable to the Products, the use thereof or any defect or deficiency in any of the Products, including claims based on theories of product liability, strict liability, or any variation thereof; or (iii) any failure of Seller to comply with or observe any applicable law; (iv) any act, failure to act or omission of Seller or any of its agents or subcontractors in the course of performing the Order or designing, producing or furnishing the Products; or (v) any failure of the Products to comply with the applicable Specifications, warranties, and certifications regarding the Products; or (vi) any Product recall. Seller shall take all precautions, special or otherwise, and shall be responsible for compliance with all local, state and federal safety laws in the performance of the work hereunder. This section shall survive termination, cancellation or expiration of the Order or of any other agreement or relationship between United Access and Seller.
If Seller performs any services on the indemnitees premises, Seller shall indemnity and hold the indemnities harmless from and against any and all liability, claims, demands, expenses, suits, actions, or other proceedings of any nature (including attorney fees, settlements, judgements or other recoveries) for any damages arising from or in connecting with the Seller’s performance of the service, except for such liability, claim, demand, expense, suit, action, or other proceeding arising from the sole negligence of the indemnities.
27. Insurance. Seller shall maintain insurance coverage for any risks arising out of use of or related to the Products and for all risk of loss to all Tooling and Drawings in the possession or control of Seller with solvent, highly rated insurance companies on commercially reasonable terms, including the amounts of coverage. Upon written request of United Access, Seller shall cause United Access to be named as an additional insured under such insurance policies. At United Access's request, Seller shall furnish to United Access certificates of insurance setting forth the amount(s) of coverage, policy number(s) and date(s) of expiration of insurance maintained by Seller. Such certificates will provide that United Access shall receive thirty (30) days' prior written notification from the insurer of any termination or reduction in the amount or scope of coverage. Seller's purchase of appropriate insurance coverage or the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under the Order. Seller's insurance coverage shall not be United Access's exclusive remedy; instead United Access shall be entitled to all remedies available to it under equity or at law.
28. Audit. United Access, or its designated representative, shall have the right, upon reasonable prior notice and during normal business hours, to audit and inspect Seller’s facilities, records, and processes related to the Products. Seller shall provide United Access or its authorized representative access to all pertinent documents, financial statements, a complete supply chain map (to include but not limited to a bill of material for all Products, a list of the names and addresses of Seller’s tier 1 and sub-tier suppliers (collectively “Sub-tier Suppliers”) and what bill of material inputs / components / raw materials the Sub-tier Suppliers’ supply), data and other information relating to the Products, and to view any facility or process relating to the Products.
29. Cybersecurity. Seller shall maintain and comply with a comprehensive cybersecurity and privacy program, which shall include reasonable and adequate technical, organization, physical, administrative and security measures and safeguards that prevent the unauthorized destruction, loss, use, disclosure, access or alteration of United Access Data and cybersecurity of the Products.
In the event Seller becomes aware of any actual or reasonably suspected unauthorized (i) access, control, or loss of access to any United Access Data, or (ii) access, control, or loss of access to interface with the Products, Seller shall promptly notify United Access and in no case later than forty-eight (48) hours after Seller becomes aware of such incident.
30. Severability. If any provision or term of the Order becomes or is deemed invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, such provision or term shall be deemed
reformed or deleted, but only to the extent necessary to comply with any statute, regulation, ordinance, executive order, or other rule of law, and all other provisions and terms of the Order shall remain in full force and effect.
31. Relationship of Parties. Seller and United Access are independent contracting parties negotiating at arm’s length, and nothing in the Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. No provision may be construed against United Access as the drafting party.
32. No Implied Waiver. The failure of United Access at any time to require performance by Seller of any provision of the Order shall in no way affect United Access's right to require such performance at any time thereafter, nor shall the waiver of United Access of a breach of any provision of the Order constitute a waiver of any succeeding breach of the same or any other provision.
33. Term for Claims. Seller shall bring any claim against United Access under the Order within one (1) year of the date the Seller knew or reasonably should have known of the facts giving rise to such claim under the Order.
34. Fees. Each party is responsible for their own legal and accounting fees unless otherwise expressly provided for herein.
35. Governing Law. This Order, including without limitation to, any controversy or claim arising out of or relating to this Order, or its breach, the interpretation of the rights and duties of the parties, is to be construed and governed in accordance with the laws of the State of Indiana, exclusive of any choice of law principles, and this Order will not be governed by the United Nations Convention of Contracts for the International Sales of Goods. Seller irrevocable and unconditionally consents to the jurisdiction of Indiana courts. Any action arising out of or relating to the Order or the Products shall be brought in the State of Indiana regardless of the residence or sites of the parties. Seller agrees that Indiana is not an inconvenient forum for any action arising from or relating to the Order. The Parties agree that this Order is a fully enforceable contract for the sale of goods under applicable law, including but not limited to the Uniform Commercial Code (“UCC”). Supplier shall comply with the Generally Accepted Accounting Principles (“GAAP”) in performance of its obligations under this Agreement.
In the event of any dispute between the parties, including but not limited to any dispute over the price, Seller agrees that it will not refuse to accept United Access’s orders or releases or to ship any Products to United Access in accordance with the terms of any of United Access’s orders or releases pending the resolution of such dispute. Seller acknowledges and agrees that any such disruption in the supply of Products pending resolution would cause irreparable harm to United Access. Accordingly, in addition to any other remedy available in law or equity, United Access is entitled to immediate injunction, and Seller agrees that it waives any defense and will not oppose any proceeding initiated by United Access to enjoin Seller from interrupting the supply of Products pending the resolution of such dispute. Should Seller breach the terms of this section, in addition to any other damages which United Access may be entitled to recover from Seller, Seller shall be required to reimburse United Access for any legal and attorney costs.
36. Entire Agreement. This Order, together with the documents specifically referenced in the Order and properly executed pursuant to the terms of the Order, or which specifically references the Order, constitutes the entire agreement between the parties with respect to the matters contained herein and supersedes all prior oral or written representations or agreements.
37. Confidentiality. Seller shall not disclose to any third party (other than its attorneys, accountants or other professional advisors which receive information under an obligation of confidentiality) any of the terms or conditions of the Order, any of United Access Data, United Access confidential information, or of any other aspect of its business relationship with United Access without United Access's prior written consent (given or withheld in United Access's discretion), other than pursuant to any court order or other lawful process. Seller shall not disclose the fact of this Order or its terms and shall not release any advertising mentioning United Access or BraunAbility, nor use the name or trademark of United Access or BraunAbility without prior consent.
“United Access Data” means any data or information and associated records, in any form or medium, (i) of United Access, its affiliates or their respective suppliers, customers, or other business partners that is provided to or obtained by Seller in connection with this Order, (ii) that is created, generated, collected, processed, maintained, stored, archived, or received in connection with this Order, or (iii) that is derived or compiled from the foregoing.
38. Seller Representations and Covenants. Seller represents, warrants and covenants that it is duly organized under the laws of the state of its organization, it is authorized and has the organization power and authority to enter into this Agreement, this Agreement is valid, binding and enforceable against Seller, its signatory is a duly authorized representative of the Seller, and it will comply with all applicable laws, rules and regulations in the performance of its obligations under this Agreement.
39. Compliance.
ROHs. Suppliers of electrical and electronic equipment
must prove to be Restriction of Hazardous Substances (ROHs) compliant and disclose if their products contains Lead, Mercury, Cadmium, Hexavalent Chromium, Polybrominated Biphenyls (PBB) or Polybrominated Diphenyl Ethers (PBDE).
Legal Compliance. Seller covenants and agrees that all activities performed, directly or indirectly, by or on behalf of Seller pursuant to this Order, shall be carried out in accordance with all applicable laws, regulations, procedures and policies to include but not limited to that of the United States.
Seller covenants and agrees to comply with all United States laws and regulations relating to exports and all administrative acts and executive orders of the U.S. government, including but not limited to the Export Administration Act of 1979, 50 U.S.C. App. §§ 2401-2420; the Arms Export Control Act, 22 U.S.C. § 2751 et seq.; the International Traffic in Arms Regulations, 22 C.F.R. 120 et seq.; the Trading with the Enemy Act, 50 U.S.C. App. 1 et seq.; the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1707 (“U.S. Export
Controls”).
Seller hereby warrants and certifies that none of the Products are or will be manufactured with child, indentured, forced or prison labor.
Seller agrees that its indemnification obligation applies to this section and extends to any anti-dumping duties which may be imposed on the Products.
Non-Discrimination. United Access shall not discriminate on the
basis of race, color, national origin, or sex in the award and performance of any DOT-assisted contract or in the administration of its DBE program or the requirements of 49 CFR part 26. United Access shall take all necessary and reasonable steps under 49 CFR part 26 to ensure nondiscrimination in the award and administration of DOT-assisted contracts. BraunAbility’s DBE program, as required by 49 CFR part 26 and as approved by DOT, is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms shall be treated as a violation of this agreement. Upon notification to United Access of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26 and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/or the Program Fraud Civil Remedies
Act of 1986 (31 U.S.C. 3801 et seq. ). Seller and any contractor, sub-recipient, or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this contract. Government Sales. In the event Products are for resale to the Federal Government, Seller shall agree to all contractual flow down clauses, register in the System for Award Management (“SAM”), and Seller shall grant the Comptroller General of the United States the right to audit its books and records.
Business Ethics & Supplier Code of Conduct. United Access is committed to ethical business practices and we hold our suppliers to the same high standards. It is our policy to comply with all applicable laws and regulations of the countries and regions in which we operate and to conduct our business activities in an honest and ethical manner. Seller shall uphold the same policies as United Access concerning compliance with all applicable laws, respect for human rights, environmental conservation and the safety of products and services. Seller shall comply with the BraunAbility Code of Conduct (BCoC) and ensure that their supply chain, including subcontractors and third party labor agencies, adhere to the standards in the BCoC. Please see the BraunAbility - Supplier Code of Conduct for more details. United Access reserves right to update, alter or change the requirements of the BCoC and this
Agreement, and Seller shall accept such changes and act accordingly.