TIFFIN METAL PRODUCTS CO.
GLOBAL PURCHASE ORDER TERMS AND CONDITIONS
1. General. These Global Purchase Order Terms and Conditions, together with all other documents issued by Tiffin Metal Products Co. (“Tiffin”) and specifically referenced herein, whether in written or electronic form, including, but not limited to current Product drawings and DXF files, and terms memorialized in applicable pre-sourcing documents signed by an authorized Tiffin representative, as such documents may be amended from time to time in accordance herewith, comprise Tiffin’s Global Purchase Order Terms and Conditions (“Terms and Conditions”). The Terms and Conditions will apply to all purchase orders and releases issued to a supplier for production and non-production goods (including tooling) and services (collectively, whether goods or services, “Products”) and, along with any such purchase order or release, represent the entire agreement between the parties in connection with the purchase and sale of such Products.
2. Offer; Acceptance. The purchase order or release to which the Terms and Conditions are applicable (collectively, this “Order”) is an offer to the supplier (“Supplier”) by Tiffin for the purchase of the Products set forth in or otherwise applicable to this Order. Supplier is solely responsible for ensuring that it has and complies with current versions of the Terms and Conditions. This Order does not constitute an acceptance of any offer or proposal made by Supplier. Any reference in this Order to any offer or proposal made by Supplier is solely to incorporate the description or specifications of Products in the prior offer or proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in this Order. Supplier’s failure to deliver written objection to this Order within two (2) days of Supplier’s receipt thereof, Supplier’s written acceptance of this Order, Supplier’s commencement of any work under this Order, or any other conduct by Supplier that recognizes the existence of a contract with regard to the subject matter of this Order, constitutes Supplier’s acceptance of this Order. By accepting this Order, Supplier acknowledges having actual knowledge of the text of documents referenced herein. Any additional or different terms or conditions proposed by Supplier, whether in Supplier’s quotation form, acknowledgement form, invoice or otherwise, are unacceptable to Tiffin, are expressly rejected by Tiffin, and shall not become part of the contract between the parties represented by this Order. THE TERMS AND CONDITIONS OF THIS ORDER ARE EXCLUSIVE. No course of dealing or usage of trade shall be applicable unless expressly incorporated into this Order. Except as set forth herein, this Order can be modified only in the manner described in Section 40 below.
3. Order Duration. Subject to Tiffin’s termination rights, if this Order is a blanket purchase order, the agreement formed by this Order is binding on the parties for one year from the date this Order is transmitted to Supplier or, if an issuance date is stated on this Order, one year from that date. Subject to Tiffin’s termination rights, and unless otherwise stated in this Order, this Order will automatically renew for successive one-year terms after the initial term unless Supplier provides written notice at least 90 days prior to the end of the then current term of its desire that this Order not be renewed. Upon receipt of Supplier’s written notice of non-renewal, Tiffin shall have the option to extend this Order for an additional 180 days beyond the then current term by giving notice of such extension to Supplier (“Extended Term”) no later than thirty (30) days prior to the end of the then current term of this Order. If Tiffin requests an Extended Term, this Order will terminate at the end of the Extended Term. Upon the expiration of any Order term or any Extended Term, Supplier shall cooperate with Tiffin and provide all reasonably requested support and information required by Tiffin to facilitate Tiffin’s sourcing of the Products to a replacement supplier.
4. Quantities. If this Order is a blanket purchase order, quantities listed or referenced, if any, are Tiffin’s best estimate of the quantities that it might purchase from Supplier for the term specified in this Order by issuance to Supplier of releases. Tiffin may purchase quantities in addition to those listed or referenced at the prices set forth in this Order by issuance of additional releases. If no quantity is stated (either by specific units or a percentage of Tiffin’s requirements) or if the quantity stated is zero, then: (i) Supplier is obligated to supply Tiffin’s stated requirements for Products in quantities as specified by Tiffin in releases issued to Supplier; (ii) unless expressly stated on the face of this Order, Tiffin is not required to purchase Products exclusively from Supplier; and (iii) Tiffin is required to purchase no less than one piece or unit of each of the Products and no more than those quantities identified as firm releases transmitted by Tiffin to Supplier; and for services, Tiffin is required to purchase such services to the extent expressly stated as a firm order in this Order or related statement of work issued by Tiffin. Tiffin may provide Supplier with estimates, forecasts or projections (“Estimates”) of its future volume or quantity requirements for Products. Unless expressly agreed by Tiffin, these Estimates are not a commitment by Tiffin to purchase the quantities specified in the Estimate. Supplier acknowledges that Estimates, like any other forward looking assumption, are based on a number of economic and business factors, variables and assumptions, some or all of which may change over time, and may or may not be accurate at the time they were made or later.
5. Pricing and Invoicing. Unless Tiffin agrees otherwise in writing in this Order, the purchase price(s) for Products under this Order include storage, handling, packaging, freight, insurance, transportation, taxes and all other expenses, costs and charges of Supplier to produce Products. All invoices under this Order must reference the Order number, Tiffin’s part number, Supplier’s part number where applicable, quantity of pieces in the shipment, number of cartons or containers in the shipment, Supplier’s name, and Tiffin assigned “supplier number,” bill of lading number, and other information required by Tiffin. Tiffin may return incorrect invoices or related documents. Payment will be made against correct documentation on the payment terms specified in Section 11 of this Order. Tiffin shall notify Supplier in writing of any disputed amount in an invoice and of the basis for the dispute. Supplier shall supply Tiffin with documentation to support the validity of any disputed amount. Tiffin may require credit for, or repayment of, the disputed amount of any invoice or billing errors or may set off its payments against any amounts due to Supplier. Under no circumstances will Tiffin be liable for any of Supplier’s business activity taxes or taxes on or measured by net income. Supplier represents and warrants that the prices to Tiffin are and will be no less favorable than those which Supplier presently, or in the future, offers to any other customer for the same or similar supplies, goods or services in similar quantities. If, while this Order is in effect, Supplier offers a lower price for the same or similar supplies, goods, or services to any other customer, then Supplier will immediately offer Tiffin the same price.
6. Delivery. (a) (i) Unless otherwise specified on the face pages of this Order, intra-continental delivery of Products shall be F.C.A. Supplier’s facility (Incoterms 2000), (ii) inter-continental ocean delivery of Products shall be F.O.B. sea port (Incoterms 2000), and (iii) inter-continental air delivery of Products shall be F.C.A. airport (Incoterms 2000). (b) Time and quantities are of the essence under this Order. Unless otherwise agreed in writing by Tiffin and Supplier, Supplier agrees to 100% on-time delivery of the quantities at the times specified by Tiffin in this Order. Failure to meet agreed delivery and quantities shall be considered a breach of this Order and Supplier shall pay to Tiffin any damages or expenses imposed upon or incurred by Tiffin as a result of such breach. In addition, if the Supplier fails to deliver the Products by the delivery date specified in this Order, the Supplier shall pay or allow to the Tiffin liquidated damages for each calendar day delivery of the Products occurs after the delivery date equal to the greater (i) of the amount of any liquidated damages or damages for delay Tiffin’s customer assesses Tiffin and Tiffin pays under its contract with its customer, or (ii) at the rate of 2.0% per 7-day week (calculated on a pro rata basis) capped at 10% of the total price of the Products included in this Order affected by the delay. Any liquidated damages will be offset from the final amount payable against this Order by the Tiffin. (c) Tiffin may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which entitles Supplier to modify the price for Products covered by this Order. (d) Tiffin is not obligated to accept early deliveries, late deliveries, partial deliveries, or excess deliveries. (e) If delivery dates are not specified in this Order Supplier will procure materials and fabricate, assemble, and deliver Products only as authorized in releases issued to Supplier by Tiffin. (f) Unless otherwise specified in writing by Tiffin, title to any Products delivered under any Order shall transfer to Tiffin upon receipt by Tiffin at Tiffin facility specified on the Order.
8. Premium Freight; Shipping Costs; Related Costs. (a) If, due to its own acts or omissions, Supplier needs to employ an expedited shipping method to meet agreed upon delivery dates, Supplier shall pay all premium or increased freight costs associated therewith. If, as a result of Supplier’s failure to comply with shipping or delivery requirements, Tiffin incurs any costs or expenses, including, without limitation, costs charged by Tiffin’s customer(s) to Tiffin, Supplier shall pay such costs and expenses. (b) Unless specifically agreed to in advance in writing by Tiffin, Tiffin is not liable for premium freight costs or expenses. (c) Supplier will reimburse Tiffin for any expenses incurred as a result of improper packing, marking, routing, or shipping.
9. Packaging; Marking; Shipping; Disclosure; Special Warnings and Instructions. (a) Supplier agrees: (i) to properly pack, mark, and ship Products in accordance with the requirements of Tiffin, the applicable carriers and the country of destination; (ii) to route the shipments in accordance with Tiffin’s instructions; (iii) to label or tag each package according to Tiffin’s instructions; (iv) to provide papers with each shipment showing the Order number, Tiffin’s part number, Supplier’s part number where applicable, quantity of pieces in the shipment, number of cartons or containers in the shipment, Supplier’s name, Tiffin assigned “supplier number,” and the bill of lading number; and (v) to promptly forward the original bill of lading or other shipment receipt for each shipment in accordance with Tiffin’s instructions and carrier requirements. (b) If requested by Tiffin, Supplier will promptly provide Tiffin the following information in the form requested: (i) a list of each of the components and materials making up the Products; (ii) the amount of each component and material in the Products, and (iii) information concerning any changes in or additions to such components or materials. (c) Before and at the time the Products are shipped, Supplier will give Tiffin sufficient warning, in writing, of any hazardous material that is an ingredient or part of the Products (including, without limitation, Material Safety Data Sheets and appropriate labels on all Products, containers, and packing), together with any special handling instructions that are needed to advise carriers, Tiffin, and their respective employees or other representatives about measures to be taken to prevent bodily injury or property damage while handling, transporting, processing, using or disposing of the Products, containers and packing. Supplier agrees to comply with all applicable foreign, federal, state, and local laws, ordinances, regulations, rules, orders, and standards (collectively, “Laws”) pertaining to the Products, including, without limitation, product and warning labels. (d) Under no circumstances will shipping documents attached to or contained in the shipment display pricing information or any of Tiffin’s proprietary information. (e) Products must be shipped in accordance with the requirements of common carrier transportation of such items and in a manner so as to obtain the lowest rate available under freight, express, insurance, and/or Governmental regulations and classifications. Penalties or increased charges due to failure so to do will be charged to Supplier.
10. Inspection; Defective and Nonconforming Products; Audit. (a) Tiffin or Tiffin’s agent may enter Supplier’s facility at any reasonable time to inspect the facility, Products, materials, records regarding Products and materials, and any of Tiffin’s property covered by this Order. (b) Tiffin’s inspection of Products, whether during manufacture, prior to delivery, or within a reasonable time after delivery, does not constitute acceptance of any work-in-process or finished goods despite any payment therefor. Tiffin’s acceptance, inspection, or failure to inspect does not relieve Supplier of any of its obligations, responsibilities, or warranties with respect to Products or otherwise. Nothing in this Order releases Supplier from the obligation of testing, inspection, and quality control. (c) Unless Tiffin otherwise notifies Supplier, if defective or nonconforming Products are shipped to and rejected by Tiffin, the quantities under this Order will not be reduced by the number of such nonconforming or defective Products. Supplier will replace any such rejected nonconforming or defective Products without a new Order from Tiffin. (d) In addition to other remedies available to Tiffin, (i) Supplier agrees to authorize return, at Supplier’s risk and expense at full invoice price, plus transportation charges, within one (1) working day of Tiffin’s notification and to replace defective Products as Tiffin deems necessary, and/or (ii) with regard to nonconforming and defective Products, at any time prior to shipment from Tiffin’s plant, Tiffin may have Supplier correct or replace any such Products, and (iii) Supplier will reimburse Tiffin for all reasonable expenses that result from any rejection or correction of nonconforming and defective Products. (e) After receipt of a sample of nonconforming or defective Products, Supplier will document corrective actions within a commercially reasonable period and will take whatever measures necessary to contain and correct the nonconformance or defect. (f) Payment for defective or nonconforming Products is not an acceptance of such Products by Tiffin, does not limit or impair Tiffin’s right to assert any legal or equitable remedy, and does not relieve Supplier’s responsibility for latent defects. (g) In addition to the inspection rights set forth in subsection (a) above, upon reasonable notice to Supplier, either Tiffin or Tiffin’s customer may conduct routine audits at Supplier’s production facility for the purposes of verification of compliance by Supplier of this Order.
11. Payment. (a) If not otherwise specified in this Order, Tiffin’s payment will be made net ninety (90) days from the later to occur of receipt by Tiffin of Products at the final shipment location as described on the face of the Order documents or correct invoice applicable to such Products, except in the case of tooling, which shall be paid for as set forth in Section 42 below. (b) Tiffin may withhold payment to the extent of any reasonable dispute regarding the amount due under any Order and pending receipt of evidence, in the form and detail requested by Tiffin, of the absence of any liens, encumbrances, or claims on Products provided under this Order. (c) Unless otherwise agreed in writing by the parties, payment will be made in U.S. dollars.
12. Changes. (a) Tiffin reserves the right to direct changes, or to cause Supplier to make changes, to drawings, specifications, samples or descriptions of Products. Tiffin also reserves the right to otherwise change the scope of the work covered by this Order, including work with respect to such matters as inspection, testing, and control. Supplier agrees to promptly make any requested changes. Supplier agrees to notify Tiffin within five (5) days after receiving notice of a change if Supplier expects that the change results in a difference in price or time for performance. Tiffin can request additional documentation from Supplier of the need for a different price or time for performance. After receiving all requested documentation, Tiffin may, at its discretion, equitably adjust the price or time for performance. If Supplier does not provide timely notice to Tiffin that a requested change may result in a difference in price or time for performance, the parties agree that Tiffin’s requested change did not affect the price or time for performance. (b) Supplier will not make any change in the Products’ design, materials, components, processing, packing, marking, shipping, or date or place of delivery except at Tiffin’s written instruction or with Tiffin’s written approval.
13. Warranties. (a) Supplier expressly warrants and guarantees to Tiffin, to Tiffin’s assigns and customers, and to users of Tiffin’s products, that all Products delivered to Tiffin will: (i) conform to the specifications, standards, drawings, samples, descriptions, and revisions as furnished to or by Tiffin; (ii) conform to all applicable Laws in countries where Products or other products incorporating Products are to be sold; (iii) be merchantable, safe, and free of defects in design (to the extent designed by Supplier), materials and workmanship; (iv) be selected, designed (to the extent designed by Supplier), manufactured or assembled by Supplier based upon Tiffin’s intended use and be fit and sufficient for the purposes intended by Tiffin; and (v) be free and clear of any liens, encumbrances and any actual or claimed patent, copyright or trademark infringement. The foregoing warranties are in addition to those available to Tiffin by applicable Laws. (b) The warranty period for the Products shall be the longer of (i) any warranty period provided by applicable Laws, (ii) any warranty period provided by Tiffin to Tiffin’s customer for Products installed on or as part of Tiffin’s product, and (iii) any warranty period provided by Tiffin’s customer to its customers for Products installed on or as part of such Tiffin’s customer’s product. (c) Supplier hereby waives and agrees to waive any time limitation to which the foregoing warranties are subject in the event that after any applicable warranty period has expired, there are failures of a statistically significant portion of the Products purchased under this Order, or a defect in Products is discovered which, in Tiffin’s opinion, poses a significant threat of damage to property or to the health or safety of any person.
14. Supplier Quality and Development; Parts Identification. (a) Supplier will conform to such quality control standards and inspection system as such may be required by Tiffin, and (to the extent directed by Tiffin) Tiffin’s customers. (b) Supplier will also participate in the quality and development programs of Tiffin and (to the extent directed by Tiffin) Tiffin’s customers that apply to the Products described in this Order. (c) Products that are a completed part shall permanently bear specific identification, if any, as set forth in Tiffin’s specifications, associated proper level print/drawing and/or Order for same. Types of identification may include, without limitation, Tiffin’s part number and name or code name, Supplier’s part number, and Supplier’s date of manufacture. (e) For Orders greater than 500 pieces or $10,000, or if samples are specified as required by an Order, Supplier will at its expense supply production samples for testing by Tiffin in accordance with the applicable quantity and quality standards set forth in this Order. (f) Products which are parts will be made with materials of the grade specified in the Order. Supplier shall use only new materials. If the material grade is not specified Order, Supplier shall verify the require material grade with Tiffin. Welds will inspected for proper penetration and appearance. Weld splatter shall be cleaned from the Product prior to final finishing. All painted Products will have the appropriate amount of paint thickness and stainless parts will be cleaned and finished in accordance with Tiffin standards made available to Supplier.
15. Remedies. The rights and remedies reserved to Tiffin in this Order shall be cumulative with, and additional to, all other legal or equitable remedies. Tiffin will notify Supplier if any Products fail to conform to the warranties set forth in this Order, or if Supplier fails to comply with or breaches any of Supplier’s representations in this Order or any of the terms and conditions of this Order, or if Supplier (or its agents, employees, or subcontractors) commits any other negligent or wrongful act or omission. Supplier will not knowingly deliver nonconforming Products. If Tiffin becomes aware of any quality issues with the Products, whether at Tiffin’s facilities or at Tiffin’s customer’s site, Tiffin will promptly notify supplier and will quarantine all Supplier Products supplied under the applicable Order and Supplier will inspect 100% of such Products for the presence of such quality defect.
At Tiffin’s request, Supplier will reimburse Tiffin for any direct, incidental or consequential damages (including associated travel expenses) caused by nonconforming Products, including but not limited to, costs, expenses, and losses incurred directly or indirectly by Tiffin or its customers in inspecting, sorting, reworking, repairing or replacing the nonconforming Products; and from personal injury (including death) or property damage caused by the nonconforming Products. Consequential damages include, without limitation, attorneys’ fees and other professional fees incurred by Tiffin. If requested by Tiffin, Supplier will enter into a separate agreement for the administration or processing of warranty chargebacks for nonconforming or defective Products, and will participate in and comply with any warranty reduction or related programs of Tiffin or (to the extent directed by Tiffin) Tiffin’s customers. In any action brought by Tiffin to enforce Supplier’s obligation to sell and deliver Products under this Order, the parties agree that Tiffin does not have an adequate remedy at law, and that Tiffin is entitled to specific performance of Supplier’s obligations under this Order. Fulfillment of all terms and conditions, formal, procedural, substantial, or otherwise, is prerequisite to fulfillment of this Order, including, without limitation, the right to receive payment of the purchase price.
16. Indemnification. In addition to indemnification provisions contained elsewhere in this Order: (a) To the fullest extent permitted by Laws, Supplier will defend, indemnify, and hold harmless Tiffin, Tiffin’s affiliates, officers, directors, representatives, and agents, Tiffin’s successors and assigns, Tiffin’s customers (both direct and indirect), and users of the products sold by Tiffin, from and against all damages, claims, demands, losses, liabilities and expenses (including, without limitation, attorneys’ fees and other professional fees, settlements and judgments) arising from (i) any defective Products or from any negligent or wrongful act or omission of Supplier, or Supplier’s agents, representatives, employees or subcontractors, or (ii) any breach or failure by Supplier to comply with any of Supplier’s representations, warranties, covenants or other terms and conditions of this Order. Supplier’s obligation to defend and indemnify under this Section 16 shall apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. Notwithstanding the expiration of any warranty period with respect to the Products, Supplier will comply and cooperate with Tiffin and indemnify and hold Tiffin harmless with respect to the cost of any voluntary or involuntary recall campaigns and other corrective service actions that, in Tiffin’s reasonable judgment, are required to rectify non-conformities in Products that are the result of a breach of Supplier’s warranties with respect to Products, or which would have been a breach of the Supplier’s warranties had the non-conformity been discovered during the warranty period for the applicable Products, whether such recall campaigns are mandated by any governmental entity, Tiffin’s customers or Tiffin. (b) If Supplier performs any work on Tiffin’s or Tiffin’s affiliate’s or customer’s premises or utilizes the property of Tiffin or Tiffin’s affiliate or customer, whether on or off Tiffin’s or Tiffin’s affiliate’s or customer’s premises: (i) Supplier will examine the premises to determine whether they are safe for the requested services and will advise Tiffin promptly of any situation it deems to be unsafe; (ii) Supplier’s employees, contractors, and agents will comply with all rules and regulations that apply to the premises; (iii) Supplier’s employees, contractors, and agents will not possess, use, sell, transfer, or be under the influence of alcohol or unauthorized, illegal, or controlled drugs or substances on the premises; and (iv) to the fullest extent permitted by Laws, Supplier will indemnify and hold Tiffin and its affiliates and customers (and their respective officers, directors, employees, agents and successors and assigns) harmless from and against any damages, claims, demands, losses, liabilities and expenses (including, without limitation, attorneys’ fees and other professional fees, settlements and judgments) for damages to the property of or personal injuries to Tiffin and its affiliates and customers (and their respective officers, directors, employees, agents and successors and assigns) or any other person or entity if the claims arise from or in connection with Supplier’s work on the premises or Supplier’s use of Tiffin’s or Tiffin’s affiliate’s or customer’s property. In furtherance of and to the extent necessary to effectuate the foregoing, Supplier hereby expressly waives any and all statutory and/or constitutional immunity to which, but for this waiver, it might be entitled (i) as an employer in compliance with the applicable state’s workers’ compensation laws or (ii) under any other employee benefit statutes or similar laws of any jurisdiction.
17. Insurance. Supplier shall maintain insurance coverage for the Products and Supplier’s operations, affiliates, and property in amounts as may be reasonably requested by Tiffin or (to the extent directed by Tiffin) Tiffin’s customer, but in any event, for as long as Supplier’s obligations to indemnify Tiffin remain in effect, Supplier will maintain commercial liability insurance, including product liability coverage, in minimum amounts of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, One Million Dollars ($1,000,000) per occurrence for damage and/or injury to property and Worker's Compensation Insurance as required by law. Such coverage shall be on a date of occurrence form. The insurance coverage required herein shall be provided by an insurance company or companies with a rating of at least A and financial size "X" or greater in Bests' Insurance Guide. Supplier shall on annual basis provide Tiffin with certificates of insurance evidencing such coverage and naming Tiffin, its subsidiaries and affiliates as additional insureds. Each certificate shall indicate that the coverage represented thereby shall not be canceled nor modified until at least thirty (30) days prior written notice has been given to Tiffin. All certificates of insurance shall be mailed by Supplier to Tiffin at its address for notice as set forth in this Order. The existence of insurance does not release Supplier of its obligations or liabilities under this Order.
18. Compliance with Laws. Supplier, and any Products and packaging therefor supplied by Supplier, as well as the suppliers to Supplier, shall comply with all applicable Laws, treaties and conventions that relate to the manufacture, labeling, transportation, sale, importation, exportation, licensing, approval, or certification of the Products, including Laws, treaties and conventions relating to environmental matters, to source and chain of custody for conflict minerals, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety. This Order incorporates by reference all clauses required by these Laws, treaties and conventions. All components and materials used by Supplier in the Products or in their manufacture shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. Supplier will defend, indemnify, and hold harmless Tiffin from and against any liability, claims, demands, or expenses (including attorneys’ fees and other professional fees, settlements and judgments) relating to Supplier’s noncompliance with this Section.
19. Tiffin-Supplied Parts. If Tiffin supplies parts for incorporation into Products by Supplier, Supplier shall inspect such parts promptly upon receipt and immediately notify Tiffin of any discrepancy in quality or quantity. If Supplier does not notify Tiffin within 48 hours after delivery of any missing or damaged parts, then Tiffin’s supply of such parts will be conclusively presumed to have been received in full and without defect, and Supplier shall be responsible for replacing any such parts later found to be missing or defective at Supplier’s sole cost. Supplier shall return any parts that are left over or supplied to Supplier as overage to Tiffin at Tiffin’s expense.
20. Customer Requirements. Supplier agrees to comply with the applicable terms and conditions of any agreements (“Customer Purchase Orders”) received by Tiffin from a third party (“Customer”) and made known to Supplier, in which Tiffin agrees to supply to Customer, or incorporate into goods supplied to Customer, Products purchased by Tiffin from Supplier. Supplier will use commercially reasonable efforts to enable Tiffin to meet the terms and conditions of the Customer Purchase Orders. If this Section conflicts with any other Section in this Order, Tiffin shall have the right to have the provisions of this Section prevail.
21. Insolvency. This Order may be terminated immediately by Tiffin without liability to Supplier upon the occurrence of any of the following events, or any other comparable events, and Supplier shall reimburse Tiffin for all costs incurred by Tiffin in connection with any of the following, including, without limitation, attorneys’ and other professional fees: (a) Supplier becomes insolvent; (b) Supplier files a voluntary petition in bankruptcy; (c) an involuntary petition in bankruptcy is filed against the Supplier and is not dismissed within sixty (60) days thereafter; (d) a receiver or trustee is appointed for Supplier; (e) Supplier needs accommodations from Tiffin, financial or otherwise, in order to meet its obligations under this Order; (f) Supplier executes an assignment for the benefit of creditors, or (g) Tiffin, in its sole judgment, determines that Supplier’s condition, financial or otherwise, shall be such as to endanger Supplier’s performance hereunder.
22. Termination for Breach or Nonperformance. Tiffin reserves the right to terminate all or any part of this Order, without liability to Supplier, if Supplier: (a) repudiates, breaches, or threatens to breach any of the terms of this Order, including Supplier’s warranties; (b) fails to perform or threatens not to perform services or deliver Products as specified by Tiffin; (c) fails to make progress so as to endanger timely and proper completion or delivery of Products and does not correct the failure or breach within five (5) days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Tiffin specifying the failure or breach; (d) sells, or offers to sell, a substantial portion of its assets used for the production of Products for Tiffin, or sells or exchanges, or offers to sell or exchange, an amount of its stock or other equity interests that would result in a change in control of Supplier; or (e) fails to remain competitive with respect to quality, technology, delivery and pricing of the Products. Supplier shall notify Tiffin within five (5) days after entering into any negotiations that could lead to the situation specified in subsection (d) above; upon Supplier’s request, Tiffin will enter into an appropriate nondisclosure agreement related to information disclosed to Tiffin in relation to such transactions.
23. Termination. (a) In addition to any other rights of Tiffin to cancel or terminate this Order, Tiffin may, at its option, immediately terminate all or any part of this Order at any time and for any reason by giving written notice to Supplier, and notwithstanding the existence of any event of force majeure as defined in this Order. (b) Upon receipt of any notice of termination, and unless otherwise directed by Tiffin, Supplier will (i) terminate promptly all work under this Order; (ii) transfer title and deliver to Tiffin the finished Products, the work in process, and the parts and materials that Supplier produced or acquired in accordance with the terms and conditions of this Order and which Supplier cannot use in producing goods for itself or for others; (iii) verify and settle any claims by subcontractors for actual costs made unrecoverable by the termination and ensure the recovery of materials in subcontractor’s possession; (iv) take actions reasonably necessary to protect property in Supplier’s possession in which Tiffin has an interest until disposal instruction from Tiffin has been received; and (v) upon Tiffin’s reasonable request, cooperate with Tiffin in transferring the production of Products to Tiffin or a different supplier. (c) Upon termination by Tiffin under this Section 23, Tiffin’s obligation to Supplier will be to pay to Supplier: (i) at the purchase price applicable to this Order, the purchase price for all finished Products that conform to the requirements of this Order and were not previously paid for; and (ii) Supplier’s reasonable actual cost of work-in-process and the parts and materials transferred to Tiffin in accordance with subsection (b)(ii) above. (d) Upon termination of this Order under this Section 23, Tiffin’s obligation to Supplier shall not exceed the obligation Tiffin would have had to Supplier in the absence of termination. (e) Within one (1) month after the effective date of termination under this Section 23 (or such shorter period as may be required by Tiffin’s customer), Supplier will furnish its termination claim to Tiffin, which shall consist exclusively of the items of Tiffin’s obligation to Supplier that are listed in subsection (c) above. Tiffin may audit Supplier’s records before or after payment to verify amounts requested in Supplier’s termination claim. (f) Tiffin will not have any obligation under subsections (a), (c), (d) or (e) above, if Tiffin terminates Tiffin’s obligations under this Order because of a default, nonperformance, or breach by Supplier as provided in Section 22 above. Notwithstanding anything herein to the contrary, Tiffin shall have no obligation to pay Supplier for anything, including, without limitation, Products, raw materials, tooling, finished goods, or work-in-process, that Supplier fabricates or procures in amounts that exceed those authorized in releases at the effective date of termination of this Order. Notwithstanding anything herein to the contrary, unless otherwise expressly agreed to in writing by Tiffin, Tiffin shall have no obligation for and shall not be required to make payments to Supplier, directly or on account of claims by Supplier’s subcontractors, for anything, including, without limitation, loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, or unamortized depreciation costs.
24. 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 beyond the reasonable control of the party and without its fault or negligence. By way of example, this includes acts of God; terrorism, restrictions, prohibitions, priorities or allocations imposed by or actions taken by any governmental authority (whether valid or invalid); embargoes; fires; floods; windstorms; explosions; riots; natural disasters; wars; sabotage; inability to obtain power; or court injunction or order; provided that an event of force majeure shall not include any labor disruptions, strikes, lockouts or slowdowns, or lack of or inability to obtain raw materials, fuel, or supplies. Written notice of such delay (including the anticipated duration of the delay) must be given to the other party as soon as possible after the commencement of the occurrence (but no more than five (5) days thereafter). During the delay or failure to perform by Supplier, Tiffin, at its option, (a) may purchase Products from other sources and reduce its Orders to Supplier by such quantities, without liability to Supplier; or (b) may ask Supplier to deliver to Tiffin at Tiffin’s expense all finished goods, work in process and parts and materials produced or acquired for work under this Order; or (c) have Supplier provide Products from other sources in quantities and at a time requested by Tiffin and at the purchase price set forth in this Order. In addition, Supplier, at its expense, shall take all necessary actions to ensure the supply of Products to Tiffin for a period of at least thirty (30) days during any anticipated labor disruption or resulting from the expiration of Supplier’s labor contracts. If Tiffin requests, Supplier shall, within five (5) days of Tiffin’s request, provide adequate assurance that the delay will cease within thirty (30) days of Tiffin’s request.
26. Proprietary Rights. (a) Supplier may not release or disclose Tiffin’s Property (as defined in Section 29) to any third party without the express written permission of Tiffin. (b) Supplier agrees: (i) to defend, hold harmless and indemnify Tiffin, its assigns and customers from and against claims of actual or alleged direct or contributory infringement or inducement to infringe any proprietary right (including any patent, trademark, copyright, or moral, industrial, design, or other proprietary right or misuse or misappropriation of trade secret), and from and against any resulting damages or expenses (including attorneys' and other professional fees, settlements and judgments) arising in any way in relation to Products covered by this Order (including without limitation their manufacture, purchase, use and/or sale), including such claims where Supplier has provided only part of the Products, and Supplier expressly waives any claim against Tiffin that such infringement arose out of compliance with Tiffin’s specifications; (ii) to waive any claim against Tiffin, including any hold harmless or similar claim, in any way related to a third-party claim asserted against Supplier or Tiffin for infringement of any proprietary right (including any patent, trademark, copyright, or moral, industrial, design, or other proprietary right or misuse or misappropriation of trade secret), including claims arising from specifications furnished by Tiffin; (iii) that Tiffin, Tiffin’s subcontractor, or direct and indirect customers (including their affiliates and subcontractors) have the worldwide, irrevocable right to repair, reconstruct, or rebuild, and to have repaired, reconstructed or rebuilt, Products delivered under this Order without payment of any royalty or other compensation to Supplier; (iv) that manufactured parts based on Tiffin’s drawings or specifications may not be used for Supplier’s own use or sold to third parties without Tiffin’s express written authorization; (v) to assign to Tiffin each invention, discovery, or improvement (whether or not patentable) that is conceived or first reduced to practice by Supplier, or by any person employed by or working under the direction of Supplier, in the performance of this Order; (vi) that if the sale or use of the Products is enjoined or, in Tiffin’s sole judgment, is likely to be enjoined, Supplier will, at Tiffin’s election and Supplier’s sole expense, procure for Tiffin the right to continue using the Products, replace the same with equivalent non-infringing goods or modify such Products so they become non-infringing. Upon completion of this Order, Supplier will promptly disclose in an acceptable form to Tiffin all such inventions, discoveries or improvements and will cause its employees and any other persons or entities working for or under the direction of Supplier to sign any papers necessary to enable Tiffin to obtain title to and to file applications for patents throughout the world; and (vii) to the extent that this Order is issued for the creation of copyrightable works, that the works shall be considered “works made for hire”, and Supplier hereby assigns to Tiffin all right, title, and interest in all copyrights and moral rights therein. (c) Unless otherwise expressly agreed by Tiffin, in writing, all Products or other deliverables provided under this Order (including, for example, computer programs, technical specifications, documentation and manuals) shall be original to Supplier and shall not incorporate any intellectual property rights (including copyright, patent, trade secret, mask work or trademark rights) of any third party. (d) Unless otherwise expressly agreed in writing by Tiffin, all Products or other deliverables provided under this Order, and all related intellectual property rights, are owned by Tiffin and not by Supplier. (e) Supplier will ensure that the terms of its contracts with its subcontractors will be consistent with the terms of this Section.
27. Service and Replacement Parts. So that Tiffin can satisfy the current model service and replacement parts requirements of itself and its customers, Supplier agrees to supply Tiffin with Products, component parts, and materials that are the same as the Products, component parts, and materials that Tiffin purchases under this Order at the price(s) set forth in this Order plus any actual cost differential for packaging for a period of three (3) years for material handling Products and ten (10) years for material handling Products, following conclusion of mass production of the Products. If the Products are systems or modules, Supplier agrees to sell each component or part at a price that does not, in the aggregate, exceed the system or module price specified in this Order, less assembly costs, plus any actual cost differential for packaging. After Tiffin completes its purchase for its customers’ current model requirements, Supplier will sell Products to Tiffin in order to fulfill Tiffin’s past model service and replacement parts requirements, at price(s) based on the most recent price(s) under this Order, taking into account differences in the cost of materials, packaging, and costs of production after the current model purchases have been completed, as mutually agreed upon by both parties. At Tiffin’s request, Supplier will make service literature and other materials available at no additional charge to support Tiffin’s service part sales activities.
28. Confidentiality. Supplier agrees to keep all confidential, proprietary and trade secret information of Tiffin, whether such information is marked or identified as confidential, in the strictest confidence and shall not use such information for the benefit of Supplier or any third-party without the prior express written approval of Tiffin which may be withheld in Tiffin’s sole discretion. Supplier’s obligations under this Section shall continue for a period of five (5) years from the date of disclosure or, in the case of trade secrets, in perpetuity. The restrictions and obligations contained in this Section impose no obligation upon Supplier with respect to confidential, proprietary and trade secret information that Supplier can demonstrate: (a) was in the Supplier’s possession before receipt from Tiffin, (b) is or becomes a matter of public knowledge through no fault of Supplier, (c) is rightfully received by Supplier from a third-party rightfully possessing such information without a duty of confidentiality, (d) is required to be disclosed by court order or other lawful governmental action, but only to the extent so ordered, and provided that Supplier provides Tiffin with reasonable prior notice of such disclosure so that Tiffin may attempt to obtain a protective order, (f) is disclosed by the Supplier with Tiffin’s prior written approval in accordance with such written approval, or (g) is independently developed by Supplier without access to Tiffin’s confidential, proprietary or trade secret information. The provisions of this Section 28 are in addition to any separate confidential non-disclosure agreement between the Parties. In the event of a conflict between the terms of this Section 28 and the terms of the confidential non-disclosure agreement, the terms which more completely protect Confidential Information from unauthorized disclosure or use shall control.
29. Tiffin’s Property. All property, including, but not limited to, all tooling, equipment, fixtures, tools, gauges, jigs, patterns, castings, cavity dies, molds, patterns, designs, drawings, spare parts, trial parts, dunnage, racks, and containers, along with all related appurtenances, accessions, and accessories, and all documents, standards or specifications, trade secrets, information, materials (including whether or not such materials are in any way modified, altered or processed), and other items furnished by Tiffin, either directly or indirectly, to Supplier to perform this Order, or for which Supplier is reimbursed by Tiffin, shall be and remain the property of Tiffin (“Tiffin’s Property”). Tiffin does not guarantee the accuracy, availability or suitability of any of Tiffin’s Property. Supplier agrees carefully to check and approve all of Tiffin’s Property prior to using it. Supplier shall assume all risk of death or injury to persons or damage to property arising from use of Tiffin’s Property. Tiffin’s Property will be held by Supplier or by a third party, to the extent that Supplier subject to Tiffin’s prior consent has transferred possession of Tiffin’s Property to a third party, on a bailment basis, as a bailee-at-will. Supplier bears the risk of loss of and damage to Tiffin’s Property. Tiffin’s Property shall be housed, maintained, repaired and replaced by Supplier at Supplier’s expense, shall not be used by Supplier for any purpose other than the performance of this Order, shall be deemed to be personal property, shall be conspicuously marked by Supplier as property of Tiffin, shall not be commingled with the property of Supplier or with that of a third person, and shall not be moved from Supplier’s premises without Tiffin’s approval. Supplier shall insure Tiffin’s Property with full fire and extended coverage insurance for its replacement value, and ensure that Tiffin is named as an additional insured in connection with such insurance. Tiffin shall have the right to enter Supplier’s premises at any time to inspect Tiffin’s Property and Supplier’s records regarding Tiffin’s Property. Only Tiffin (or Tiffin’s affiliates) has any right, title or interest in Tiffin’s Property, except for Supplier’s limited right, subject to Tiffin’s unfettered discretion, to use Tiffin’s Property in the manufacture of Products. Tiffin and its affiliates shall have the right to take immediate possession of Tiffin’s Property at any time without payment of any kind. Supplier agrees to cooperate with Tiffin if Tiffin elects to take possession of Tiffin’s Property. Likewise, effective immediately upon written notice to Supplier, without further notice or court hearings, Tiffin has the right to enter the premises of Supplier and take possession of all of Tiffin’s Property. Supplier expressly waives any right to additional notice or process and agrees to provide Tiffin or its nominee(s) with immediate access to Tiffin’s Property. Supplier grants to Tiffin a limited power of attorney to execute and record on Supplier’s behalf any notice financing statements with respect to Tiffin’s Property that Tiffin determines are reasonably necessary to reflect Tiffin’s interest in Tiffin’s Property. At Tiffin’s request, Tiffin’s Property shall be immediately released to Tiffin or delivered by Supplier to Tiffin either (a) F.C.A. Supplier’s plant (Incoterms 2000), properly packed and marked in accordance with the requirements of Tiffin’s selected carrier, or (b) to any location designated by Tiffin, in which case Tiffin will pay Supplier the reasonable costs of delivery. Supplier waives and releases, to the extent permitted by Laws, any lien or other rights that Supplier might otherwise have on Tiffin’s Property. Notwithstanding the foregoing, in the event Tiffin and Supplier now or hereafter enter into a separate agreement regarding Tiffin’s Property (a Tooling Agreement, for example), the terms of such agreement shall control with respect to Tiffin’s Property which is the subject thereof.
30. Supplier’s Property. Supplier, at its expense, shall furnish, keep in good condition, and replace when necessary, all machinery, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns, and items other than Tiffin’s Property that are necessary for the production of Products (“Supplier’s Property”). Supplier shall insure Supplier’s Property with full fire and extended coverage insurance for its replacement value. If Supplier uses Supplier’s Property to produce goods or services, similar to Products, for other customers, including aftermarket customers, such goods or services shall not incorporate any of Tiffin’s intellectual property, including, but not limited to, logos, trademarks, patents, trade names, part numbers, trade dress, know-how or industrial design rights. Supplier shall not disclose or imply in its marketing efforts that these goods or services are equivalent to those purchased by Tiffin. Supplier grants to Tiffin an irrevocable option to take possession of and title to Supplier’s Property that is special for the production of Products under this Order upon payment to Supplier of its net book value less any amounts that Tiffin has previously paid to Supplier for the cost of these items. Tiffin may exercise this option at any time and upon such exercise by Tiffin, Supplier will cooperate with Tiffin’s removal of Supplier’s Property from Supplier’s premises. This option does not apply if Supplier’s Property is used to produce goods that are the standard stock of Supplier or if a substantial quantity of like goods are being sold by Supplier to others.
31. Customs; Related Matters. (a) Supplier agrees to fulfill any customs or international trade association related obligations, origin marking or labeling requirements, and local content origin requirements. Export licenses or authorizations necessary for the export of Products are Supplier’s responsibility unless otherwise indicated in this Order, in which case Supplier will provide the information necessary to enable Tiffin to obtain the licenses or authorizations. Supplier will promptly notify Tiffin in writing of any material or components used by Supplier in filling this Order that Supplier purchases in a country other than the country in which the Products are delivered. Supplier will furnish any documentation and information necessary to establish the country of origin or to comply with the applicable country’s rules of origin requirements. Supplier will promptly advise Tiffin of any material or components imported into the country of origin and any duty included in the Products’ purchase price. If Products are manufactured in a country other than the country in which Products are delivered, Supplier will mark Products (“Made in [country of origin]”). Supplier will provide to Tiffin and the appropriate governmental agency the documentation necessary to determine the admissibility and the effect of entry of Products into the country in which Products are delivered. Supplier warrants that any information that is supplied to Tiffin about the import or export of Products is true and that all sales covered by this Order will be made at not less than fair value under the anti-dumping laws of the countries to which the Products are exported. (b) At all times during the term and any Extended Term of this Order Supplier agrees to have in place, and to ensure that its suppliers and other applicable business partners have in place, security processes, procedures and programs with respect to Products and supply chain security that are appropriate and consistent with industry and international trade standards for the Products contemplated hereby and otherwise as reasonably requested by Tiffin. Tiffin may audit such processes, procedures and programs at any time upon request.
32. Set-Off; Recoupment. In addition to any right of setoff or recoupment provided by Laws, all amounts due to Supplier shall be considered net of indebtedness of Supplier and its affiliates or subsidiaries to Tiffin and its affiliates or subsidiaries. Tiffin shall have the right to set off against or to recoup from any payment or other obligation owed to Supplier, in whole or in part, any amounts due to Tiffin or its affiliates or subsidiaries from Supplier or its affiliates or subsidiaries. Tiffin will provide Supplier with a statement describing any offset or recoupment taken by Tiffin.
33. No Advertising. Without first obtaining Tiffin’s written consent, Supplier shall not advertise or publish in any manner the fact that Supplier has contracted to furnish Tiffin the Products covered by this Order, or use any trademarks or trade names of Tiffin in Supplier’s advertising or promotional materials.
34. Relationship of Parties. Supplier and Tiffin are independent contracting parties and nothing in this Order shall make either party the agent or legal representative of the other for any purpose. This Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
35. Non-Assignment. Supplier may not assign or delegate or subcontract its obligations under this Order without Tiffin’s prior written consent, which consent may be withheld in Tiffin’s sole discretion. In the event of any approved assignment, delegation, or subcontract authorized by Tiffin, (a) Supplier retains all responsibility for Products, including, without limitation, all related warranties and claims, unless otherwise expressly agreed in writing by Tiffin, and (b) Tiffin, at its sole discretion, may arrange to pay such assignee, delegatee or subcontractor directly or jointly with Supplier. Tiffin will have the right to assign any benefit or duty under an Order to any third party upon notice to Supplier with or without consent.
36. Notices; Electronic Communications and Signatures. All notices, consents, approvals, records, and other communications required or permitted to be held or delivered pursuant to this Order, and all disputes to be resolved in connection with this Order, shall be held, delivered, and resolved in the English language and, if applicable, any other language required by the Laws of the jurisdiction in which this Order originates. Supplier shall comply with any reasonable method of electronic communication specified by Tiffin, including requirements for electronic funds transfer, purchase order transmission, releases, electronic signatures, and communication.
37. Governing Law; Jurisdiction. All disputes between the parties, including those arising, directly or indirectly, under this Order or the performance or breach of this Order, shall be adjudicated exclusively in the courts of Seneca County, Ohio or, if subject matter jurisdiction exists, the U.S. District Court for the Northern District of Ohio. The parties stipulate that the referenced venues are convenient. All disputes between the parties under this Order will be construed, governed and controlled in all respects by the laws of the State of Ohio. The UN Convention for the International Sale of Goods is expressly excluded. If the Supplier is located outside of the United States, then Tiffin shall have the option of submitting any dispute, controversy or claim, arising under this Order or otherwise, to binding arbitration. Such arbitration will take place before one arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association and shall take place in Toledo, Ohio. The arbitration award may be entered as a final judgment in any court of competent jurisdiction. The Federal Arbitration Act, 9 USC §1, et seq. will apply to the application and interpretation of this arbitration provision. Notwithstanding the foregoing, any request for injunctive relief may be brought by Tiffin in any court(s) having jurisdiction over Supplier and/or Supplier’s property and Supplier consents to the jurisdiction of such court. Moreover, Supplier acknowledges that to the extent this Order relates to the supply of Products for use as, or fabrication into, parts or components of larger systems, money damages would not be sufficient to remedy any actual anticipatory or threatened breach of this Order by Supplier with respect to the delivery of Products, and that, in addition to all other rights and remedies, Tiffin shall be entitled to specific performance and injunctive relief as a remedy for any such breach or threatened breach.
38. Severability. If any term of this Order is invalid or unenforceable under any applicable Laws, the term shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such Laws. The remaining provisions of this Order shall remain in full force and effect.
39. Survival. Supplier’s obligations to Tiffin survive termination of this Order, except as otherwise provided in this Order.
40. Entire Agreement; Modifications; No Implied Waiver. (a) This Order, together with the attachments, exhibits, supplements, or other terms of Tiffin specifically referenced in this Order, constitutes the entire agreement between Supplier and Tiffin with respect to the matters contained in this Order and supersedes all prior oral or written representations and agreements. Except as expressly set forth herein, this Order may only be modified by a written amendment executed by authorized representatives of each party or, in the case of changes within the scope of Section 12 by an Order amendment issued by Tiffin. (b) The failure of either party at any time to require performance by the other party of any provision of this Order shall in no way affect the right to require performance at any later time, nor shall the waiver of either party of a breach of any provision of this Order constitute a waiver of any later breach of the same or any other provision of this Order.
41. Sales Tax Exemption. Tiffin certifies that Products purchased under this Order and identified as industrial processing are eligible for state and federal sales tax exemption under the federal identification number indicated on the face of this Order or otherwise provided by Tiffin.
42. Tooling. The provisions of this Section apply only to orders by Tiffin for tooling, tools, fixtures or other equipment (“Tooling”) from Supplier. All Tooling is to be made to Tiffin’s specifications (or, where directed by Tiffin, those of Tiffin’s customer). Supplier agrees that any agreement for the purchase or fabrication of Tooling (“Tooling Contract”) with a supplier of Tooling (“Toolmaker”) will (a) direct the Toolmaker to supply the Tooling only in accordance with Tiffin’s specifications, (b) be subject to the prior review and approval by Tiffin upon request, (c) permit assignment thereof to Tiffin to enable Tiffin to exercise all rights of Supplier thereunder, (d) provide that Toolmaker shall afford to Tiffin the rights of access at any time upon request of Tiffin to the Tooling to inspect work performed and to verify charges submitted by Supplier against this Order, (e) provide that the Toolmaker shall afford to Tiffin the right of possession of the Tooling (including all simulations, test data and other information necessary to manufacture, install and otherwise use such Tooling) at any time upon request of Tiffin, (f) name Tiffin as an express third-party beneficiary in the Tooling Contract, (g) provide that title to the Tooling will pass directly from the Toolmaker to Tiffin, and (h) if the Tooling is not made in North America, provide that Supplier shall be the importer of record of the Tooling. The price set forth in this Order shall be adjusted so as to credit Tiffin in the amount, if any, by which the price exceeds Supplier’s actual cost as verified. Unless otherwise agreed in writing by Tiffin, payment by Tiffin to Supplier for Tooling shall be due net ninety (90) days of the later of (1) Tiffin’s successful product validation testing, or (2) in the case of reimbursable Tooling (e.g., Tooling to be paid for and owned by Tiffin’s customer), receipt of payment by Tiffin from Tiffin’s customer. Supplier further agrees to retain all cost records for a period of two (2) years after receiving final payment of the charges for Tooling.
43. Conflicts. In the event of a conflict between the Terms and Conditions and the face pages of any Order or release issued by Tiffin to Supplier, the face pages of the Order will control with respect to the Products which are the subject of such Order.
44. Export Compliance. Supplier represents and warrants that it is not subject to the jurisdiction of any country that is subject to a comprehensive U.S. embargo and is not designated on, or associated with, any party designated on any of the U.S. government restricted parties lists, including, without limitation: the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”) Denied Persons List, Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially Designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List. Supplier represents and warrants that neither the Products nor any related technical data to be provided to Tiffin in conjunction with this order is controlled under the Commerce Control List of the Export Administration Regulations, the U.S. Munitions List of the International Traffic in Arms Regulations (“ITAR”) or under the export control laws of its own country. Supplier agrees to obtain any needed export license or authorization prior to the export of the Products purchased when necessary. Supplier shall not export or re-export, directly or indirectly, any of Tiffin’s information, goods, software, and/or technology provided to it in conjunction with this order, without complying with all applicable U.S. and international export control laws for which at the time of export or re-export, an export license or other governmental approval is required, without first obtaining such license or approval.
45. Anti-Bribery; FCPA Compliance. Supplier represents and warrants that in connection with this Order or in any business transacted with or on behalf of Tiffin it (a) has not performed and will not perform any of the following acts: pay, offer or promise to pay, or authorize the payment of, any money, or give or promise to give, or authorize the giving of, any services or anything else of value, either directly or through a third party, to any official or employee of any governmental authority or instrumentality, or of a public international organization, or of any agency or subdivision thereof, or to any political party or official thereof or to any candidate for political office for the purpose of (i) influencing any act or decision of that person in his official capacity, including a decision to fail to perform his official functions with such governmental agency or instrumentality or such public international organization or such political party, (ii) inducing such person to use his influence with such governmental agency or instrumentality or such public international organization or such political party to affect or influence any act or decision thereof or (iii) securing any improper advantage; and (b) otherwise has not violated and not will violate any provision of the United States Foreign Corrupt Practices Act or any other applicable anti-bribery law or regulation.
Global Purchase Order Terms and Conditions