Terms and Conditionsof Saia-Burgess Controls AG
TERMS AND CONDITIONS
Unless otherwise agreed in writing the following terms and conditions apply without exception to all sales and services by Saia Burgess Controls AG (“Honeywell”) to Buyer within the territory of Switzerland.
1. SOLE TERMS.
Honeywell’s sale is expressly limited to the terms herein and refers to all goods sold and services provided by Honeywell. Any additional or different terms or conditions on Buyer‘s purchase order or any other instrument, agreement, or understanding are deemed to be material alterations and are rejected and not binding upon Honeywell. Honeywell’s acceptance of Buyer’s purchase order is expressly conditional upon Buyer’s assent to the terms and conditions contained herein in their entirety. Buyer’s acceptance of delivery from Honeywell constitutes Buyer’s acceptance of these terms and conditions in their entirety. Prior to placing its first order with Honeywell, Buyer must open an account with Honeywell and, on request from Buyer, Honeywell will send to Buyer the required forms for completion
2. QUOTE/ PRICES.
a) Information in any quotations and in attached drawings and illustrations about the goods, their measurements and weights are only approximate unless they are expressly stated as being binding.
b) Content and scope of the supply are determined exclusively on the basis of Honeywell’s written quotation and order confirmation.
c) Honeywell’s quotations are subject to change until accepted by the Buyer. If an offer is stated as being binding, it shall be binding for 3 months from its date of issue.
d) Honeywell reserves the right to make technical changes to construction, form and material of good - also during the delivery time - providing these changes are reasonably acceptable to Buyer. If agreed by the parties, changes to goods or services to be supplied, Honeywell is entitled to claim additional costs with immediate effect and is not obliged to perform the contract until Buyer agrees to make such payments.
e) Buyer must request shipment of the entire quantity of goods ordered within 12 months from date of order; otherwise, Honeywell´s standard prices at time of shipment may, at Honeywell´s option, apply to those quantities actually delivered, even if already invoiced.
f) Prices are EX WORKS Honeywell (Incoterms 2010). Unless specifically agreed in writing prices for goods do not include the cost of packaging, or services such as shipment, installation, start-up, commissioning or maintenance. If Honeywell has expressly agreed to ship goods, shipment costs will be as per the quote or if none mentioned the relevant catalog.
g) All tooling, designs, drawings, and other intellectual property produced or delivered hereunder are owned by Honeywell.
h) The minimum order value is set at € 50.00 excluding VAT. Order values less than such minimum order value will be subject to a handling fee in the amount of € 25.00.
i) Prices are subject to change without notice; provided, however, that Honeywell will endeavor to provide at least thirty (30) days written notice of any changes.
j) Additionally, pricing is subject to immediate change upon announcement of product obsolescence. All orders placed after notice of product obsolescence are non-cancelable and nonreturnable. Buyer must request shipment of the entire quantity of goods ordered within 12 months from date of order, otherwise, Honeywell standard prices at time of shipment may, at Honeywell’ option, apply to those quantities delivered, even if already invoiced.
k) If, at any time, Honeywell’ costs of materials have increased by 5% or more, then Honeywell may increase the price on all affected goods accordingly with respect to existing and future Honeywell quotations and/or Buyer purchase orders
a) Unless otherwise expressly agreed in writing, all payments are to be in EUROS and are due net in Honeywell’s account within 30 days from date of invoice.
b) All bank charges in connection with any payment shall be paid by Buyer. Checks and/or bills of exchange will only be accepted in payment’s stead and in accordance with a special written agreement. They are deemed as payment only when they have been cashed in.
c) Honeywell at all times reserves the right to evaluate Buyer’s credit standing and if Buyer fails to qualify for credit under Honeywell’s criteria, Honeywell may modify or withdraw credit terms without notice and require guarantees, security or payment in advance for further deliveries of goods. If these are not provided within a reasonable period following a notice, Honeywell may rescind the contract and/or claim costs, losses or damages.
d). The failure of the Buyer to pay any part of the price of the goods in due time shall, at Honeywell’s discretion, give rise to: a) The immediate suspension of all pending deliveries, without any prior written notice being necessary ; (b) The immediate obligation to pay all sums that are outstanding, regardless of the agreed method of payment (such as by bill of exchange), without any prior written notice being necessary ; (c) The application of a late payment interest, without any prior written notice being necessary to Buyer, equal to 2% per month higher than the rate of interest charged by Honeywell‘ bankers on Honeywell‘ overdraft from time to time (or maximum legal rate); (d) The application of a late payment penalty, after prior written notice to Buyer, equal to 1.5 times the legal interest rate, calculated by taking into account the number of days between the due date for payment and the date of the effective payment (correspond to the late payment interest). The legal interest rate shall be that of the last day of the month preceding the issuance of the invoice; (e) The invoicing, as liquidated damages and without any prior written notice being necessary, of a sum equal to 20% of the total amount (exclusive of VAT) of the unpaid invoice.
4. DELIVERY, EXAMINATION, RETENTION OF TITLE, COOPERATION .
a) All delivery dates are estimates unless agreed otherwise by Honeywell in writing.
b) Honeywell may make deliveries under any order in one or more shipments, to the extent that this is reasonably acceptable to Buyer, and may issue separate invoices.
c) Any fixed dates for deliveries agreed in writing are conditional upon the timely provision of all documents by the Buyer, any required authorizations and approvals, in particular of plans and the provision of all necessary information. If these requirements are not fulfilled in a timely manner, the fixed dates will be extended accordingly. This does not apply if Honeywell is responsible for the delay.
d) Honeywell may demand an appropriate extension of the delivery date in the event of subsequent changes agreed.
e) Delivery terms for goods are EX WORKS Honeywell (Incoterms 2010) with all risk of loss or damage to goods passing to Buyer upon delivery to carrier.
f) Buyer must inspect all goods upon delivery without undue delay and must report i) obvious defects, transport damages, discrepancies and shortages without undue delay, and in no event later than 10 days after delivery, (ii) hidden defects without undue delay, and in no event later than 10 days after detection in writing to Honeywell. Otherwise all goods will be deemed delivered and accepted, unless Honeywell fraudulently neglected to disclose such faults. Buyer will return to Honeywell any goods that are rejected at its own expense. In the event Buyer refuses to accept delivery, Buyer shall be liable for increased costs incurred by Honeywell in accordance with section 7 c).
g) Honeywell shall retain title in all goods delivered by Honeywell until payment has been made in full. In the event Buyer has credit with Honeywell, retention of title shall serve as security for any balance due to Honeywell.
h) Until title in the goods is transferred to Buyer, Buyer shall treat the goods with care; in particular it shall insure them sufficiently against fire, water and theft at reinstatement value at its own cost.
i) In the event of seizure or any other measure taken by third parties in relation to the goods, Buyer shall notify Honeywell in writing without undue delay so that Honeywell can initiate legal proceedings pursuant to § 771 of the German Code of Civil Procedure in order to prevent execution of any court order. If the third party is unable to reimburse the costs incurred in court and out of court of a claim pursuant to § 771 of the German Code of Civil Procedure, Buyer is liable for the damages incurred hereby.
j) Any processing of or alteration to the goods carried out by Buyer shall always be carried out for Honeywell. If the goods are processed using other items, which do not belong to Honeywell, Honeywell shall acquire co-ownership of the new item in the ratio of the value of the object delivered to the other processed items at the time of processing.
k) If the goods are irreversibly mixed using other items, which do not belong to Honeywell, Honeywell shall acquire co-ownership of the new item in the ratio of the value of the object delivered to the other mixed items at the time of mixing. If the mixing process takes place in such a way that Buyer‘s item must be regarded as the principal item the parties shall be deemed to have agreed that Buyer shall transfer shared title to Honeywell pro rata.
l) Should Buyer sell the goods delivered – whether processed or not – in due course of business, it hereby assigns any claims from selling the goods with all ancillary rights vis-àvis its customer to Honeywell.
m) On good cause Buyer is obliged, if requested by Honeywell, to inform Honeywell of any assign-ment to a third-party purchaser and to give Honeywell all information required for the assertion of its rights and to hand over any documents.
n) Should the realizable value of Honeywell‘s security exceed the debt claim to be secured by more than 10 % Honeywell shall release part of the security – at its discretion – at the request of Buyer.
o) Buyer shall make available in time all equipment and grant access to all facilities which Honeywell may require to perform any services.
The amount of any and all applicable taxes will be added to the price and paid by Buyer, unless Buyer has provided Honeywell with exemption certificates acceptable to the taxing authorities.
6. FORCE MAJEURE, DELAY.
a) Honeywell is not liable for any delay in production or delivery of goods if due to a force majeure event, which includes, among other things, shortages or inability to obtain materials or components, or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any government that would limit Honeywell‘s ability to perform, fire, earthquake, flood, severe weather conditions, or any other acts of God, quarantines, epidemics, pandemics, or other regional medical crisis labor strikes or lockouts, riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war (or imminent threat of same), or any other cause whatsoever beyond Honeywell‘s reasonable control.
b) If the force majeure event continues for longer than 90 days, either party may terminate Buyer’s purchase order. If Buyer terminates the order, Buyer will pay Honeywell for work performed prior to termination and all reasonable expenses incurred by Honeywell prior to termination. In the event of delays in delivery or performance caused by force majeure or Buyer, the date of delivery or performance shall be extended by the period of time Honeywell is actually delayed or as mutually agreed. Any claims for damages, costs or losses howsoever construed shall be excluded.
c) If, for reasons other than the foregoing, Honeywell should default or delay or not deliver goods, Buyer‘s sole remedy against Honeywell is an option to cancel Buyer’s purchase order, through prior written notice to Honeywell. In as far as Buyer incurs damages due to a delivery delay, Honeywell‘s liability is limited to 0.5% of the order value of the delayed delivery per week up to a maximum amount of 5% of the order value of the delayed delivery. Buyer is only entitled to claim damages in lieu of performance in accordance with section 10 (limitation of liability).
7. TERMINATION, RETURN OF GOODS.
a) Buyer may not terminate or cancel a purchase order without Honeywell’s prior written consent. Goods scheduled for shipment within 30 days cannot be rescheduled. Goods scheduled for shipment between 30 and 60 days may be rescheduled with Honeywell‘s prior written consent and if rescheduled beyond 60 days that quantity may not be further rescheduled. Buyer is nonetheless liable for termination charges, which may include i) a price adjustment based on the quantity of goods delivered, (ii) all costs, direct and indirect, incurred and committed for Buyer‘s terminated purchase order, (iii) the full cost of all unique materials required for custom goods, and (iv) a pro-rata compensation covering the prorated expenses and anticipated profits consistent with industry standards.
b) Honeywell may terminate a Buyer‘s purchase order in whole or in part upon Buyer’s breach of these terms and conditions or Buyer’s bankruptcy, insolvency, dissolution, or receivership proceedings without any further liability.
c) Returns of goods are only accepted in their original packed and sealed condition within three months after shipment. Software, customized products and products in opened packaging, lacquered und non-reusable parts cannot be returned. Goods can only be returned with an authorization number (RMA/RAN) obtained from Honeywell in advance of shipment to Honeywell. The RMA/RAN is specific to the relevant goods and quantity. Honeywell reserves the right to i) reject any return of other goods than specific to the RMA/RAN or (ii) charge an additional 25.00 € per return. In case of accepted returns, the purchase price shall be repaid with a deduction of up to 30% for processing, testing, administration and other overheads. The minimum charge for returns is 80.00 € per invoice. This does not affect the purchaser’s rights under the product warranty. If the Purchaser withdraws from the Contract and is not entitled to do so, or if the Purchaser refuses to accept the delivery and is unjustified in doing so, the Honeywell is entitled to 30% of the agreed price as liquidated damages, unless the Purchaser proves that the Honeywell has not suffered any damage or to a lesser extent reserves the right to claim further damages.
8. INTELLECTUAL PROPERTY AND INFRINGEMENT INDEMNIFICATION.
a) Copyright, design right and all other rights in the design and manufacture of goods supplied by Honeywell remain Honeywell´s property and none is acquired by Buyer.
b) Any software provided by Honeywell is hereby licensed and not sold. The use of software, if provided separately or installed on a good supplied, is governed by the following terms unless a software license agreement is included with such software. The license is nonexclusive, and is limited to such equipment and/ or location(s) as are specified on the purchase order for which this instrument serves as either a quotation or acknowledgment. No other use is permitted. Honeywell retains for itself (or, if applicable, its suppliers) all title and ownership to any software delivered hereunder, all of which contains confidential and proprietary information and which ownership includes without limitation all rights in patents, copyrights, trademarks and trade secrets. Buyer shall not attempt any sale, transfer, sublicense, reverse compilation or disassembly or redistribution of the software. Nor shall Buyer copy, disclose or display any such software, or otherwise make it available to others (except as Honeywell authorizes in writing). If the software is delivered with a good, Buyer may only transfer its license of the software to a third party in conjunction with the sale by Buyer of the good on which the software is installed. Honeywell may terminate this license if Buyer breaches fundamental provisions under these terms and conditions.
c) Honeywell agrees to defend or settle any claim, suit, or proceeding brought against Buyer based upon a claim that any product manufactured and provided by Honeywell hereunder directly infringes any third party patent, copyright, or maskwork in the European Union and to pay costs and damages finally awarded to the third party, provided that: (i) Honeywell is notified promptly in writing of such claim; (ii) Honeywell is provided sole control of such defense or settlement using counsel of Honeywell´s choice; (iii) and Buyer provides Honeywell with all available information and assistance. Honeywell shall not be responsible for any settlement or compromise of such claim made without Honeywell´s written consent.
d) Honeywell shall have no such obligation in respect of claims arising: (i) from goods not in Honeywell´s catalogue or goods developed pursuant to Buyer´s direction, design, or specification; (ii) from goods developed by Honeywell using any process required by Buyer; (iii) from the combination of any goods with other elements if such infringement would have been avoided by the product not in such combination; or (iv) from goods that have been modified if such infringement would have been avoided by the unmodified product. Buyer agrees to defend, indemnify, and hold harmless Honeywell from and against any claims, suits, or proceedings whatsoever arising from such exclusions identified in (i)-(iv) above.
e) At any time after such a claim has been made or Honeywell believes is likely to be made, or a court of competent jurisdiction enters an injunction from which no appeal can be taken, Honeywell will have at its option the discretion to: (i) procure for Buyer the right to continue using such product; (ii) replace or modify such product; or (iii) accept the product’s return and refund the purchase price less twenty percent (20%) annual depreciation from shipment date. In no event shall Honeywell be liable for any consequential, incidental, special, or punitive damages. The foregoing states Honeywell´s entire liability and Buyer´s exclusive remedy for any actual or alleged infringement of third party rights. This section 8 is in lieu of and replaces any other expressed, implied, or statutory warranty against infringement.
a) To the extent permitted by law Honeywell shall only be liable in accordance with the following warranty conditions, which replace any other warranties or guarantees. Any other claim shall be excluded. In particular (unless otherwise agreed in writing) Honeywell does not warrant the fitness of the product for any specific use which would not be the use for which the product was designed by its manufacturer.
b) Except as otherwise expressly provided herein, Honeywell warrants goods in all material respects to be free of defective materials and faulty workmanship and as conforming to applicable specifications and/or drawings.
c) Unless otherwise agreed in writing commencing with Honeywell’s date of shipment, the warranty period shall run for 24 months. This does not apply to damage claims according to Section 10. These claims are subject to the statutory limitation periods. Also excluded from this limitation are recourse claims in case of consumer products.
d) Goods can only be returned with an authorization number (RMA/RAN) obtained from Honeywell in advance of shipment to Honeywell. The RMA/RAN is specific to the relevant goods and quantity. Non-complying goods returned to Honeywell in accordance with Section 4f) will be repaired or replaced (subsequent performance), at Honeywell’s option, and return-shipped at the lowest cost, transportation prepaid. The costs of transportation to Honeywell have to be borne by Buyer. Subsequent performance shall not include removing/de-installing the defective good or re-installing the repaired good or replacement good, unless Honeywell in the first place undertook to install the good.
e) In the event Honeywell fails to repair or replace the non-complying good within a reasonable time limit set by Buyer, Honeywell shall accept the return of such goods and refund the purchase price less 20% annual depreciation from shipment date.
f) The foregoing states Buyer’s exclusive remedy in case of defects. Buyer is only entitled to claim damages subject to section 10 (limitation of liability).
g) If so requested by Honeywell, the Buyer shall give Honeywell sufficient opportunity to verify any fault, in particular to provide faulty goods and their packaging to Honeywell for inspection. If the Buyer refuses, Honeywell shall not be liable for such defects.
h) Goods subject to wear and tear or burnout through usage shall not be deemed defective because of such wear and tear or burnout. No warranty shall apply if the defect or damage was caused by or related to installation, combination with other parts and/or products, modification to or repair of any goods other than by Honeywell, the Buyer’s failure to apply required or recommended updates or patches to any software or device in the goods network environment, or resulted from Buyer’s acts, omissions, misuse, or negligence.
i) Repaired or replaced goods shall be warranted for the remainder of the unused warranty term or for 90 days from shipment, whichever is longer.
j) It is Buyer’s responsibility to ensure that the Goods are fit for the application in which they are used.
k) Software, if supplied separately or installed on goods supplied, and warranted by Honeywell, will be furnished on a medium that is free of defect in materials or workmanship under normal use for so long as the hardware and/or system is under warranty. During this period, Buyer has the rights listed in section 9 d) with regard to any defects of the software. Unless stipulated otherwise in a separate software license agreement no further warranty is given in respect of software.
l) If Honeywell provides any services to the Buyer, including but not limited to training or assistance with configuration and installation of the goods, Honeywell shall provide such services in accordance with normal industry practice at such rates as may be specified by Honeywell in its price list from time to time. In case of non-conformance which Honeywell has been notified of correctly and promptly, Honeywell will repeat services and/or correct accordingly. To the extent permitted by law Honeywell accepts no liability to the Buyer arising out of the provision of such services.
m) Honeywell does not represent or warrant that the goods may not be compromised or circum-vented or that the goods will prevent any personal injury or property loss, burglary, robbery, fire or otherwise, or that the goods will in all cases provide adequate warning or protection. Buyer understands that a properly installed and maintained alarm may only reduce the risk of burglary, robbery, fire or other events occurring without providing an alarm, but it is not an insurance or guarantee that such will not occur or that there will be no personal injury or property loss as a result.
n) These warranties are for the benefit of the Buyer only and are not assignable or transferable.
o) Subject to appropriate storage and handling according to the manual Honeywell grants a guarantee of durability (in the meaning of §443 II German Civil Code) for 24 months from delivery date to the customer. Excluded are device software, consumables and spare parts. At Honeywell`s discretion the product will either be replaced or repaired. Defects which occur within the guarantee period must be reported in writing immediately on detection or if earlier when it should have been recognized.
p) In the event of the supply of a consumer product any recourse claims remain unaffected. Any other recourse claims are excluded.
q) Honeywell has no obligation to hold spares of any goods that it has ceased to produce or distribute but, if the goods are manufactured by Honeywell, it will use reasonable endeavours to ensure that any goods that replace the discontinued goods are backwards compatible with them and, if requested by Buyer prior to the date of product discontinuation, Honeywell will permit Buyer to buy such quantities of the discontinued goods as it may reasonably require.
10. LIMITATION OF LIABILITY.
a) Honeywell is liable for intent and gross negligence on its part, on the part of its legal repre-sentatives and vicarious agents. If Honeywell has not acted intentionally Honeywell‘s liability is restricted to typical, foreseeable damage.
b) Honeywell shall also be liable in the event of negligent injury to life, body and health caused by Honeywell, its legal representatives or vicarious agents and in the event of wilful failure to disclose a defect. Where a guarantee is provided by Honeywell, then the extent of Honeywell‘s liability is to be determined pursuant to the guarantee declaration.
c) Honeywell shall also be liable for the negligent failure to comply with any of its obligations that are fundamental to the purpose of the agreement. If Honeywell has not acted intentionally Honeywell‘s liability is restricted to typical, foreseeable damage.
d) Additionally Honeywell shall be liable in cases of mandatory statutory liability, for example pursuant to the Product Liability Act.
e) Buyer shall indemnify Honeywell against any claims, damages, losses, costs and expenses incurred by Honeywell as a result of either claims made against Honeywell by third parties arising out of the combination or use of the goods with any incompatible ancillary products that may be connected to the goods or failure to apply required or recommended updates or patches to any software or device in the goods network environment or any other matter for which Honeywell would not be liable to Buyer under these terms and conditions.
f) Buyer acknowledges that Honeywell has no obligation to provide any form of cybersecurity or data protection relating to the operation of the goods, software or the network environment. Honeywell may provide internet based services with the goods. It may change or cancel those services at any time. Honeywell has no obligation to provide any form of cybersecurity or data protection relating to such internet based services.
g) Other than stated herein any liability of Honeywell is excluded, regardless of the theory of liability, whether based in contract, tort, indemnity or otherwise.
h) Buyer shall notify and consult with Honeywell without undue delay and comprehensively if it intends to take legal recourse in accordance with the afore-mentioned provision. Buyer has to allow Honeywell to investigate and examine the damages.
Any recommendations or assistance provided by Honeywell concerning the use, design, application, or operation of the goods shall not be construed as representations or warranties of any kind, express or implied, and such information is accepted by Buyer at Buyer’s own risk and without any obligation or liability to Honeywell. It is the Buyer’s sole responsibility to determine the suitability of the goods for use in the Buyer’s application(s). Other than in cases of statutory obligations the failure by Honeywell to make recommendations or provide assistance shall not give rise to any liability to Honeywell.
a) Buyer will comply with all applicable laws, regulations, and ordinances of any governmental authority in any country having proper jurisdiction, including, without limitation, those laws of the United States of America or other countries that regulate the import or export of the goods provided by Honeywell and shall obtain all necessary import/export licenses in connection with any subsequent import, export, re-export, transfer, and use of all goods, technology, and software purchased, licensed, and received from Honeywell. Unless otherwise mutually agreed in writing, Buyer agrees that it will not use or permit third parties to use the goods in connection with any activity involving nuclear fission or fusion, any use or handling of any nuclear material, or any nuclear, chemical, or biological weapons.
b) Buyer shall not sell, transfer, export or re-export any goods or software for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use the goods or software in any facility which engages in activities relating to such weapons or missiles. In addition, the goods or software may not be used in connection with any activity involving nuclear fission or fusion, or any use or handling of any nuclear material until Buyer, at no expense to Honeywell, has insurance coverage, indemnities, and waivers of liability, recourse and subrogation, acceptable to Honeywell and adequate in Honeywell´s opinion to protect Honeywell against any type of liability.
c) Goods and services delivered by Honeywell hereunder will be produced and supplied in compliance with all applicable laws and regulations in the Federal Republic of Germany. Buyer confirms that it will ensure that all goods are properly installed and used in accordance with the applicable safety at work laws and regulations, and Buyer will indemnify Honeywell in respect of any costs, claims, actions or liability arising out of that Act, or otherwise arising out of the supply by Buyer or use by others of the goods, unless this is not caused by Buyer‘s failure.
13. PRECLUSION AGAINST SETOFF.
Buyer is only entitled to set off any amount against any amount due or to become due from Honeywell to Buyer or its affiliates that are undisputed or final absolute.
a) Prices do not include the costs of recycling goods covered by the European WEEE Directive 2002/96/EC and such costs may be added to the prices quoted. b) Unless a charge has been made therefore under section 14 a) above, if the provisions of the WEEE Directive 2002/96/EC as implemented in any local jurisdiction apply to goods, the financing and organization of the disposal of waste electrical and electronic equipment are with the exception of goods which are b2c as per Honeywell catalog the responsibility of the Buyer who herewith accepts this responsibility, and Buyer will indemnify Honeywell in respect of all such liabilities. The Buyer will handle the collection, processing and recycling of the goods in accordance with all applicable laws and regulations, and shall pass on this obligation to the final user of the goods. Failure by the Buyer to comply with these obligations may lead to the application of criminal sanctions in accordance with local laws and regulations.
15. APPLICABLE LAW.
These terms and conditions are subject to the Laws of the Switzerland. These terms and conditions are excluded from the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto. The competent court at the seat of Honeywell will have exclusive jurisdiction to adjudicate any dispute related to these terms and conditions.
Buyer shall indemnify Honeywell for all costs and damages, including attorneys’ fees, suffered by Honeywell as a result of Buyer’s culpable actual or threatened breach of these terms and conditions.
17. BUYER’S OBLIGATIONS RELATING TO CYBERSECURITY EVENT
a) In order to facilitate Honeywell’s investigation of any cybersecurity event involving the goods or software, Buyer agrees to cooperate with Honeywell in any investigation, litigation, or other action, as deemed necessary by Honeywell to protect its rights relating to a cybersecurity event.
b) Honeywell does not represent that the goods or software is compatible with any specific third party hardware or software other than as expressly specified by Honeywell. Buyer is responsible for providing and maintaining an operating environment with at least the minimum standards specified by Honeywell. Buyer understands and warrants that Buyer has an obligation to implement and maintain reasonable and appropriate security measures relating to the goods or software, the information used therein, and the network environment. This obligation includes complying with applicable cybersecurity standards and best industry practices including those recommended by any national institutions in the Buyer’s territory. If a cybersecurity event occurs, Buyer shall promptly notify Honeywell of the cybersecurity event. Buyer shall promptly use its best efforts to detect, respond and recover from such a cybersecurity event. Buyer shall take reasonable steps to immediately remedy any cybersecurity event and prevent any further cybersecurity event at Buyer’s expense in accordance with applicable laws, regulations, and standards. Buyer further agrees that Buyer will use its best efforts to preserve forensic data and evidence in its response to a cybersecurity event. Buyer will provide and make available this forensic evidence and data to Honeywell.
c) Honeywell shall not be liable for damages caused by a cybersecurity event resulting from Buyer’s failure to comply with these terms or Buyer’s failure to maintain reasonable and appropriate security measures. d) Buyer agrees to comply with all applicable data security laws and standards, and shall indemnify and hold Honeywell harmless for Buyer’s failure to comply.
a) The parties may exchange confidential information during the performance or fulfilment of any supply. Confidential information includes any information or data that are provided by one party (the disclosing party) to the other party (the recipient) in any form, including any information or data relating to the operation or performance of products and all data generated by the products which are aggregated and de-identified. However, such information or data may be used by Honeywell in accordance with section 18 b) below. All confidential information shall remain the property of the disclosing party and shall be kept confidential by the recipient for a period of 10 years following the date of disclosure. These obligations shall not apply to information which is: (i) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (ii) known to recipient at the time of disclosure through no wrongful act of recipient, (iii) received by recipient from a third party without restrictions similar to those in this section, or (iv) independently developed by recipient. Each party shall retain ownership of its confidential information, including without limitation all rights in patents, copyrights, trademarks and trade secrets. A recipient of confidential information may not disclose such confidential information without the prior written consent of the disclosing party, provided that Honeywell may disclose confidential information to its affiliated companies in the sense of §§ 15 et seq. AktG, and its and their employees, officers, consultants, agents, and contractors.
b) Subject to compliance with all applicable data protection laws and regulations, Honeywell retains the right to utilize any and all data and information that is collected, generated, processed or transmitted by or through the products and all data and information provided or transmitted to Honeywell regarding the operation or performance of the products in an aggregated or anonymized form for any business purpose, including product, software or service development, marketing or sales support or other analytics. To the extent that Honeywell does not own any such information or data, Buyer grants Honeywell and its affiliated companies in the sense of §§ 15 et seq. AktG (or shall procure for Honeywell and its affiliated companies in the sense of §§ 15 et seq. AktG the grant of) a perpetual right to use and make derivative works from such information and data for any lawful purpose.
c) Honeywell will process Buyer’s personal data as necessary to sell the products and/or to provide the services to Buyer and to meet Honeywell‘s obligations under any purchase order and applicable law as a data processor. Honeywell shall process Buyer’s personal data during the period of performance of any Buyer’s purchase order governed by these terms and conditions and thereafter. Buyer as data controller acknowledges and agrees that Honeywell will share personal data with its affiliated companies in the sense of §§ 15 et seq. AktG and may transfer the personal data to USA, India or Mexico.
d) These terms and conditions (including those agreed separately in writing) constitute the entire agreement of Honeywell and Buyer, superseding all prior agreements or understandings, written or oral, and cannot be amended except by a mutually executed writing.
e) Buyer may not assign any rights or duties hereunder without Honeywell‘s written prior consent. Honeywell may subcontract its obligations hereunder without Buyer’s consent. No representation, warranty, course of dealing, or trade usage not contained or expressly set forth herein will be binding on Honeywell.
f) Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of these terms and conditions.
g) No failure by Honeywell to enforce at any time for any period the provisions hereof shall be construed as a waiver of such provision or of the right of Honeywell to enforce thereafter each and every provision.
h) In the event any provision herein is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions shall not be affected and, in lieu of such provision, a provision as similar in terms as may be legal, valid, and enforceable shall be added hereto.
i) Provisions herein which by their very nature are intended to survive termination, cancellation, or completion of supply shall survive such termination, cancellation, or completion.
j) All stenographic and clerical errors are subject to correction.
k) These terms and conditions shall confer no benefit on any third party.
The English language version of these terms and conditions will prevail in case of conflict with any translations provided for the information of the Buyer.
Version of March 2020
Terms and Conditions of Saia-Burgess Controls AG
1. Acceptance - Order of Precedence – Modification
This Purchase Order is for the purchase of goods, services, or both as described on the face of this document (collectively, "Goods") and is issued by the member of the Honeywell International Inc. group of companies identified on the face of this document ("Honeywell"). This Purchase Order is deemed accepted when Supplier returns the acknowledgment copy of this Purchase Order or begins performing, whichever is earlier. Honeywell rejects any additional or inconsistent terms and conditions offered by Supplier at any time. Any reference to Supplier's quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document. No course of prior dealing or usage of the trade may modify, supplement, or explain any terms used in this Purchase Order. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of the Purchase Order, or attached, or any documents incorporated by reference, supersede any prior or contemporaneous communications, representations, promises, or negotiations, whether oral or written, respecting the subject matter of this Purchase Order. All contract documents related to this Purchase Order are interpreted together as one agreement. But if there is an irreconcilable conflict among the provisions of those contract documents, the following order of precedence applies: (a) any consignment agreement; then (b) any supply agreement; then (c) any contract for labor services; then (d) the face of the Purchase Order and any supplemental terms included or incorporated by reference; then (e) these general Purchase Order provisions; and finally (f) other contract documents agreed to in writing by the parties. No change to or modification of this Purchase Order will be binding upon Honeywell unless in writing, specifically identifying that it amends this Purchase Order, and signed, or approved electronically, by an authorized procurement representative of Honeywell. If Supplier becomes aware of any ambiguities, issues, or discrepancies between this Purchase Order and any specification, design, or other technical requirement applicable to this Purchase Order, Supplier will immediately submit the matter to Honeywell for resolution.
2. Delivery, Shipment and Packaging
2.1. Supplier will deliver Goods in the quantities and on the date(s) specified on the Purchase Order or Purchase Order schedule releases. If delivery dates are not stated, Supplier will offer its best delivery date(s), which will be subject to acceptance by Honeywell. Unless otherwise directed, all Goods shipped in one day from and to a single location must be consolidated on one bill of lading or air waybill, as appropriate. TIME IS OF THE ESSENCE.
2.2. If the delivery schedule is endangered for any reason other than Honeywell's fault then Supplier will, at its expense, deliver Goods by the most expeditious shipping method required to fulfill the Purchase Order delivery requirements. Honeywell reserves the right to reject, at no expense to Honeywell, all or any part of any delivery that varies from the quantity authorized by Honeywell for shipment. Honeywell reserves the right to pursue additional remedies caused by late delivery. Supplier will not make any substitutions without Honeywell's prior written approval. All items will be packaged according to Honeywell's instructions or, if none, according to good commercial practice in a manner sufficient to ensure receipt in an undamaged condition. Honeywell will not be liable for any discharge, spill or other environmental incident (including clean-up costs) involving any Goods shipped under the Purchase Order until received by Honeywell. All containers will be properly marked for identification as instructed on Honeywell's Purchase Order and contain a packing slip that details, at a minimum, the Honeywell Purchase Order number(s), product part number, detailed product description, country of origin, total number of boxes in shipment, quantity of product shipped, and final delivery address. Items shipped in advance of Honeywell's delivery schedule may be returned at Supplier's expense. For domestic shipments, if requested by Honeywell, and for all international shipments, Supplier will give notice of shipment to Honeywell when the Goods are delivered to a carrier for transportation. The Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading, and air waybills.
2.3. All Goods, unless specifically exempted by the destination country's governing authorities, must be marked with the country of origin (manufacture) of the Goods in a conspicuous place as legibly, indelibly, and permanently as the nature of the article or container permits.
2.4. Supplier will provide Honeywell with (a) the Harmonized Tariff Schedule number, country of origin information or certificates, manufacturer's affidavits, applicable free trade agreement ("FTA") certificates, and any other documents or information Honeywell may require to comply with international trade regulations or to lawfully minimize duties, taxes, and fees, and (b) FTA certificates for all Goods that qualify under one or more FTAs. Supplier will provide Honeywell all documents, records, and other supporting information necessary to substantiate the Goods' qualification under an FTA. Supplier will exert reasonable efforts to qualify the Goods under FTAs.
2.5. Within one business day after Supplier delivers the Goods to the carrier, Supplier will send Honeywell a complete set of shipping documents including the commercial invoice, packing list, and air waybill, or three original parts of the combined through-bill of lading, clean without notation, necessary to release the Goods to Honeywell's custody.
3. Notice of Delay.
Supplier must immediately notify Honeywell in writing with all relevant information relating to any delay or threatened delay of the timely performance of this PO.
4. Excusable Delay (Force Majeure)
Neither party will be in default for any delay or failure to perform due to causes beyond its control and without its fault or negligence, but any delay or failure to perform caused by the default of a sub tier supplier of Supplier will be excused only if (a) it is beyond the control of both Supplier and its sub-tier supplier(s) and without the fault or negligence of any of them, and (b) the Goods to be furnished cannot be obtained from other sources in sufficient time to permit Supplier to meet the delivery schedule. Supplier's ability to sell Goods at a more advantageous price or Supplier's economic hardship in buying materials or processing necessary for manufacture of the Goods will not constitute an excusable delay event. The party affected by an excusable delay will promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the excusable delay, and will use its best efforts to remedy the delay if it can be remedied. If Supplier's delivery is delayed, Honeywell may cancel deliveries scheduled during the excusable delay period or elect to extend the period of performance to cover the period of delay caused by the excusable delay. If an excusable delay occurs that affects delivery of Goods to Honeywell, Supplier will allocate its available supply of Goods in a manner that assures Honeywell of at least the same proportion of Supplier's total output of Goods as was allocated to Honeywell before the excusable delay event. If delivery of any Goods is delayed for more than 30 days, Honeywell may, without liability, cancel all or any part of this Purchase Order.
5. Performance Assurance Plan
If Honeywell, in its sole discretion, determines there is a significant risk that Supplier will fail to meet its performance or delivery requirements under this Purchase Order, Honeywell may require Supplier to perform under a Honeywell Performance Assurance Plan. The Performance Assurance Plan may include specific reporting and performance requirements reasonably tailored to ensure Supplier's adequate performance under identified provisions of this Purchase Order. Any failure by Supplier to satisfy the terms of the Performance Assurance Plan is a material breach of this Purchase Order.
6. Shipping Terms, Title and Risk of Loss
6.1. If the Goods will be transported from Supplier's location in the U.S. to Honeywell's location in the U.S., unless otherwise specified on the face of the Purchase Order or in a separate agreement, the F. O. B. point is Honeywell's location. When the F. O. B. point is Supplier's location, Supplier bears all risk of loss or damage to the Goods and title passes to Honeywell upon delivery of the Goods to the carrier designated or approved by Honeywell. When the F. O. B. point is Honeywell's location, Supplier bears all risk of loss or damage to the Goods and title passes to Honeywell upon delivery of the Goods at Honeywell's location.
6.2. In all other cases, unless otherwise specified on the face of the Purchase Order or in a separate agreement, Supplier will deliver the Goods DDU (Incoterms 2000) at Honeywell's location. Title to Goods passes to Honeywell upon receipt at Honeywell's location.
6.3. The foregoing does not relieve Supplier of any responsibility for hidden damages discovered after acceptance of the Goods. Notwithstanding the foregoing, title and risk of loss to Goods subject to a consignment stock agreement pass upon release of the Goods from the consignment stock. Honeywell may direct Supplier to ship the Goods to Honeywell or to any third party designated by Honeywell.
7. Import/Customs Compliance
Supplier assumes all responsibility and liability for any shipments covered by this Purchase Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Goods imported under this Purchase Order, Honeywell reserves the right to terminate this Purchase Order under the Termination provisions of this Purchase Order. Supplier will be debited for any duties, fees, or freight incurred by Honeywell due to Supplier's failure to comply with the terms and conditions of this Purchase Order.
All drawback of duties, and rights thereto, related to duties paid by Supplier or Honeywell when the Goods are imported or any materials or components used in manufacturing of the Goods will accrue to the exclusive benefit of Honeywell. Duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub-tier suppliers related to the Goods. Supplier will provide Honeywell with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with Honeywell to obtain payment.
If Supplier is a non-U.S. entity, Supplier will assist Honeywell in obtaining credit from Supplier's government for the value of relevant Goods purchased to meet any present or future contractual offer or industrial benefit requirements imposed upon Honeywell or its subsidiaries or affiliates. Assistance includes, but is not limited to, providing upon Honeywell's request evidence of the existence, value, content, and other pertinent information relating to the purchases. Honeywell reserves the right to claim these credits for itself or third parties. If Supplier is a U.S. entity that awards any portion of the work under this Purchase Order to any lower tier non-U.S. supplier, Supplier will assign to Honeywell any credits obtained from the lower tier non-U.S. supplier's government relating to this transaction and assist Honeywell in obtaining the earned credits.
10. Honeywell-Supplied Materials, Tooling, Equipment and Technical Data
10.1 Title to any material, tooling, equipment, or technical data that Honeywell pays for or provides to Supplier or is responsible for providing to Supplier, including replacements ("Honeywell Property"), will remain or vest with Honeywell. Supplier will conspicuously label Honeywell Property as such, maintain it in good condition, keep written records of the Honeywell Property in its possession and the location of the property, not allow any liens to be placed upon it, and not change its location without prior written approval from Honeywell. Supplier is responsible for inspecting and determining that the Honeywell Property is in useable and acceptable condition.
10.2 Supplier will use Honeywell Property exclusively to fulfill Honeywell Purchase Orders unless otherwise authorized in writing by Honeywell's procurement representative. Honeywell Property is intended for use at the Supplier's site only or as otherwise authorized in writing by Honeywell's procurement representative and, to the extent applicable, is subject to U.S. and other government export or re-export requirements. Supplier is responsible for any loss, damage, or destruction of Honeywell Property and any loss, damage or destruction of any third-party property resulting from Supplier's negligent use of Honeywell Property. Supplier will not include the cost of any insurance for Honeywell Property in the prices charged under this Purchase Order. Supplier will return Honeywell Property or dispose of it as Honeywell directs in writing. Honeywell makes no representations and disclaims all warranties (express or implied) with respect to Honeywell Property.
Supplier will furnish the Goods at the prices stated on the face of the Purchase Order. If prices are not stated on the face of the Purchase Order, Supplier will offer its lowest prices subject to written acceptance by Honeywell. Unless otherwise provided on the face of the Purchase Order, the prices include all packaging and freight to the specified delivery point; applicable taxes and other government charges including, but not limited to, all sales, use, or excise taxes; and all customs duties, fees, or charges. To the extent that value added tax (or any equivalent tax) is properly chargeable on the supply to Honeywell of any Goods, Honeywell will pay the tax as an addition to payments otherwise due Supplier under this Purchase Order, if Supplier provides to Honeywell a value-added tax (or equivalent tax) invoice. Upon the agreement of the parties to reduced pricing for the Goods, such pricing shall immediately apply to all Goods in consignment or under a stocking arrangement with Supplier, all undelivered Goods, all open and unfilled Purchase Orders, all future Purchase Orders and all unconsumed inventory owned by Honeywell.
12. Price: Most Favored Customer and Meet or Release
Supplier warrants that the prices charged for the Goods delivered under this Purchase Order are the lowest prices charged by Supplier for similar Goods. If Supplier charges a lower price for similar Goods, Supplier must notify Honeywell and apply that price to all Goods ordered under this Purchase Order. If at any time before full performance of this Purchase Order Honeywell notifies Supplier in writing that Honeywell has received a written offer from another supplier for similar Goods at a price lower than the price set forth in this Purchase Order, Supplier must immediately meet the lower price for any undelivered Goods. If Supplier fails to meet the lower price Honeywell, at its option, may terminate the balance of the Purchase Order without liability. As directed by Honeywell, Supplier will provide the Goods at the prices listed on the face of this Purchase Order, subject to these terms and conditions, to other Honeywell divisions and affiliates and any third-party Honeywell sub-supplier or designee.
13. Invoicing and Payment
After each shipment made or service provided, Supplier will submit an invoice listing a description of the Goods provided and, as applicable, part numbers, quantity, unit of measure, hours, and the unit and total prices. This invoice must match the corresponding Purchase Order pricing, quantities, and terms, and must be sent to the invoice address listed on the Purchase Order. All applicable taxes and other Government charges including, but not limited to, sales, use, or excise taxes; value added tax, customs duties, fees and all incidental charges including but not limited to royalties, selling commissions, nonrecurring engineering, or other incidental charges must be separately itemized and identified on the invoice. The invoice must also include the following information in English, or in the destination country's official language if required: (a) name and address of Supplier and the Honeywell entity purchasing the Goods; (b) name of shipper (if different from Supplier); (c) Honeywell's Purchase Order number(s); (d) country of export; (e) detailed description of the Goods; (f) Harmonized Tariff Schedule number; (g) country of origin (manufacture) of the Goods, or if multiple countries of origin, the country of origin of each part shipped; (h) weights of the Goods shipped; (i) currency in which the sale was made; (j) payment terms; (k) shipment terms used; and (l) all rebates or discounts. The invoice will be accompanied (if applicable) by a signed bill of lading or express receipt evidencing shipment. Payment of an invoice does not constitute acceptance of the Goods and is subject to appropriate adjustment should Supplier fail to meet the requirements of the Purchase Order. Payment terms are net 120 days from receipt of a Honeywell- approved invoice unless otherwise stated on the face of the Purchase Order or other written agreement executed by both parties. Invoices will not be approved unless they accurately reference conforming Goods received by Honeywell or services satisfactorily performed for Honeywell. Payment will be scheduled for the first payment cycle following the net terms for the Purchase Order.
14. Set Off.
Honeywell may deduct any amount owing from Supplier to Honeywell as a set off against any amount owing to Supplier under this Purchase Order.
15.1. All Goods may be inspected and tested by Honeywell, its customers, higher-tier contractors, and end users at all reasonable times and places. If inspection or testing is made on Supplier's premises, Supplier will provide, without charge, all reasonable facilities and assistance required for the inspection and tests. Supplier's standard inspection and testing system must be approved by Honeywell in writing. All inspection and testing records, including sub-tier supplier records relating to the Goods, will be maintained by Supplier and made available to Honeywell during the performance of this Purchase Order, and for such longer periods if specified by Honeywell.
15.2. Final inspection and acceptance by Honeywell will be at destination unless otherwise specified in this Purchase Order. Honeywell may inspect all or a sample of Goods and may reject all or any portion of the Goods if Honeywell determines them to be defective or nonconforming. If Honeywell performs any inspection (other than the standard inspection) after discovering defective or nonconforming Goods, any additional inspection costs will be paid by Supplier. No inspection, tests, approval, design approval, or acceptance of the Goods relieves Supplier from responsibility for warranty or any latent or patent defects, fraud, or negligence. If Goods are defective or nonconforming, Honeywell may, by written notice to Supplier: (a) rescind this Purchase Order as to the Goods; (b) accept the Goods at an equitable reduction in price; or (c) reject the Goods and require the delivery of replacements. Delivery of replacements will be accompanied by a written notice specifying that the Goods are replacements. If Supplier fails to deliver required replacements promptly, Honeywell may correct any retained defective or nonconforming Goods at Supplier's expense; replace them with Goods from another supplier and charge the Supplier the cost thereof, including cover, and any incidental costs; or terminate this Purchase Order for cause.
16.1. Supplier warrants to Honeywell, its successors, assigns, customers, and end users that during the entire Warranty Period specified below, all Goods furnished (including all replacement or corrected Goods or components) will (a) be free from defects in material, workmanship, and design, even if the design has been approved by Honeywell, (b) conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Honeywell, (c) be merchantable, (d) be fit for the intended purposes and operate as intended, (e) comply with all laws, (f) be free and clear of any and all liens or other encumbrances, and (g) not infringe any patent, published patent application, or other intellectual property rights of any third party and not utilize misappropriated third party trade secret information. Goods that meet the preceding standards are collectively called "conforming Goods."
16.2. As to services, in addition to any express or implied warranties, Supplier warrants that (a) it possesses the requisite expertise, facilities and equipment necessary and appropriate to perform the services, (b) the services will be performed in a safe and workmanlike manner, and (c) the services will be performed in accordance with the highest standards in the industry.
16.3. The Warranty Period is 24 months from the date of delivery to the end user or such longer period of time mandated by any longer government requirement covering the Goods. In addition to the warranties described above, Supplier also warrants all Goods to the same extent and for the same time period (if extending beyond 24 months) as the warranties provided by Honeywell to Honeywell's customers relating to such Goods. These warranties are for the benefit of Honeywell, Honeywell's customers, and any other person claiming by or through Honeywell. These warranties will survive any delivery, inspection, acceptance, or payment by Honeywell. Claims for breach of warranty do not accrue until discovery of nonconformance, even if the Goods were previously inspected. Any applicable statute of limitations runs from the date of discovery. If conforming Goods are not furnished within the time specified by Honeywell then Honeywell may, at its election, have the nonconforming Goods repaired, replaced, or corrected at Supplier's expense or credited to Honeywell. Supplier is responsible for the costs of repairing, replacing or correcting nonconforming Goods or crediting them to Honeywell, and for all related costs, expenses and damages including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection, and retrofit of the nonconforming Goods or of Honeywell's affected end-product; all freight charges; all customer charges; and all corrective action costs. Unless set off by Honeywell, Supplier will reimburse Honeywell for all such costs upon receipt of Honeywell's invoice. Any replacement Goods are warranted for the same period as the original Goods. Additionally, if any services are found not to be performed as warranted within a period of 24 months after the conclusion of the performance of the services by Supplier, Honeywell may direct Supplier to either refund to Honeywell the amount paid for the services, or perform the services again in a proper manner to the extent necessary to provide Honeywell with the result originally contemplated by Honeywell. The warranties and rights provided are cumulative and in addition to any warranty provided by law or equity.
Honeywell may, by written or electronic notification, direct changes in the drawings, designs, specifications, method of shipment or packing, quantity, or time or place of delivery of the Goods; reschedule the services; or require additional or diminished services. Only authorized Honeywell procurement representatives may issue changes to the Purchase Order. If any change causes an increase or decrease in the cost of, or the time required for, performing this Purchase Order, an equitable adjustment will be made in the Purchase Order price, delivery dates or both, and this Purchase Order will be modified in writing or electronically accordingly. Any claim by Supplier for adjustment under this provision may be deemed to be waived unless asserted in writing (including the amount of the claim) and delivered to Honeywell within 30 days from the date of the receipt by Supplier of the Honeywell-directed change to the Purchase Order. If the cost of property made obsolete or excess as a result of a change is paid by Honeywell, Honeywell may prescribe the manner of disposition of the property. Notwithstanding any disagreement between the parties regarding the impact of a change, Supplier will proceed diligently with its performance under this Purchase Order pending resolution of the disagreement.
18. Design and Process Changes
Supplier will make no changes in the design, materials, manufacturing location, or processes of the Goods specified in the Purchase Order or documents referenced in it, or if none, those in place when the Purchase Order is issued, without the advance written approval of Honeywell's procurement representative. Changes to a process include, but are not limited to, changes to the production process, changes in manufacturing equipment, changes in manufacturing location, or changes between a manual and automated process. This requirement applies whether or not the change affects costs and regardless of the type of change, including product improvements.
19. Stop Work
At any time by written notice and at no cost, Honeywell may require Supplier to stop all or any part of the work under this Purchase Order for up to 120 days ("Stop Work Order"), and for any further period as mutually agreed. Immediately upon receipt of a Stop Work Order, Supplier will comply with its terms. At any time Honeywell may, in whole or in part, either cancel the Stop Work Order or terminate the work under the Termination section of this Purchase Order. To the extent the Stop Work Order is canceled or expires, Supplier must immediately resume work.
20.1. The nonbreaching party may terminate this Purchase Order if the other party commits a material breach and fails to remedy the breach within 10 calendar days following receipt of written notice specifying the grounds for the breach. A material breach includes, but is not limited to, late delivery or delivery of nonconforming Goods. If Supplier breaches its obligations to Honeywell and Honeywell terminates this Purchase Order in whole or in part, Honeywell may charge Supplier for any additional cost it incurs in performing Supplier's obligations or in having such obligations performed by a third party. The solvent party may terminate this Purchase Order upon written notice if the other party becomes insolvent or if any petition is filed or proceedings commenced by or against that party relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If a termination by Honeywell for breach by Supplier is determined to have lacked cause, such termination will be treated as a termination without cause under Section 20.2.
20.2. Notwithstanding any firm time period or quantity on the face of the Purchase Order, Honeywell may terminate this Purchase Order in whole or in part at any time with or without cause for undelivered Goods or unperformed services upon 10 days' prior written notice.
20.3. If Honeywell terminates this Purchase Order under either 20.1 or 20.2, Honeywell's sole liability to Supplier, and Supplier's sole and exclusive remedy, is payment for Goods received and accepted by Honeywell before the date of termination. The payment can be set off against any damages to Honeywell. Upon termination, Honeywell may require Supplier to transfer title and deliver to Honeywell any completed Goods and Honeywell will pay the Purchase Order price for those Goods subject to set off against any damages to Honeywell. Honeywell may also require Supplier to transfer title and deliver to Honeywell any or all property produced or procured by Supplier to perform this Purchase Order. Honeywell will credit Supplier with the reasonable value of the property, but not more than Supplier's actual cost or the Purchase Order value, whichever is less.
20.4. To the extent that any portion of this Purchase Order is not terminated under 20.1 or 20.2 above, Supplier will continue performing that portion.
21. Cessation of Production
If production of any Good is to be discontinued or suspended within 1 year after final delivery under this Purchase Order, Supplier must give Honeywell as much prior written notice as commercially reasonable of the discontinuance or suspension. For at least 180 days from the discontinuance or suspension, Supplier must accept orders from Honeywell for the Good at the price and on the terms of this Purchase Order.
22. General Indemnification
Supplier will, at its expense, defend and indemnify Honeywell and its subsidiaries, affiliates, and agents, and their respective officers, directors, shareholders, and employees, and Honeywell's customers (collectively "Indemnitees") from and against any and all loss, cost, expense, damage, liquidated damages, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict (collectively, "Damages") incurred by or demanded of an Indemnitee arising out of, resulting from or occurring in connection with Supplier's Goods or services or Supplier's negligence, willful misconduct, or breach of the terms of this Purchase Order. In no event will Supplier enter into any settlement without Honeywell's prior written consent, which will not be unreasonably withheld. If Honeywell is obligated to pay Damages pursuant to its contract with a customer, then Supplier will be liable for such Damages to the extent Supplier causes or contributes to those Damages. Nothing in this Section limits Honeywell's right to claim all actual damages sustained by Honeywell as a result of Supplier-caused delays.
23. Intellectual Property Indemnification
For Goods provided under this Purchase Order, Supplier will, at its expense, defend and indemnify Indemnitee from and against any and all loss, cost, expense, damage, claim, demand, or liability, including reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by or demanded from Indemnitee arising out of, resulting from, or occurring in connection with any alleged: (a) patent, copyright, or trademark infringement; (b) unlawful disclosure, use, or misappropriation of a trade secret; or (c) violation of any other third-party intellectual property right, and from expenses incurred by Indemnitee in defense of such suit, claim, or proceeding if Supplier does not undertake the defense thereof. Supplier will have the right to conduct the defense of any such claim or action and, consistent with Indemnitee's rights hereunder, all negotiations for its settlement. But in no event will Supplier enter into any settlement without Honeywell's prior written consent, which will not be unreasonably withheld. Indemnitee may participate in a defense or negotiations to protect its interests. If any injunction or restraining order is issued, Supplier will, at its expense, obtain for Indemnitee either the right to continue using and selling the Goods or replace or modify the Goods to make them no infringing.
Supplier will maintain and carry liability insurance in an amount no less than the greater of (a) the minimum amount required by applicable law, or (b) the following coverages: commercial general liability (including product liability and, for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, worker's compensation in an amount no less than the applicable statutory minimum requirement, and employer's liability in an amount of no less than $5 million, all with insurance carriers with an AM Bests rating of no less than A- or equivalent. In addition, Supplier is responsible for maintaining an adequate level of insurance to cover any potential losses due to damage to Honeywell Property, as defined in Section 10. All insurance required by this Section must cover Honeywell, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents as additional insureds. Before delivery of any Goods or commencement of any services under the Purchase Order, Supplier will provide to Honeywell evidence that Seller maintains the described insurance, and that the coverage will not be changed without 30 days advance written notification to Honeywell from the carrier(s). Except where prohibited by law, Supplier will require its insurers to waive all rights of recovery or subrogation against Honeywell, its subsidiaries and affiliated companies, and its and their respective officers, directors, shareholders, employees, and agents. The amount of insurance carried in compliance with the above requirements is not to be construed as either a limitation on or satisfaction of the indemnification obligation in this Purchase Order.
25. Lien Waivers
Supplier will furnish, upon Honeywell's request, waivers by Supplier and all other persons entitled to assert any lien rights in connection with the performance of this Purchase Order and will indemnify Honeywell against all costs, loss or liability incurred by Honeywell as a result of any failure by Supplier or any other person to comply with this provision.
26. Confidentiality and Intellectual Property
26.1. All information, including without limitation specifications, samples, drawings, materials, know-how, designs, processes, and other technical, business, or financial information, that: (a) has been or will be supplied to Supplier by or on behalf of Honeywell; or (b) Supplier will design, develop, or create in connection with this Purchase Order; as to individual items or a combination of components or both, and whether or not completed, and all derivatives of (a) and (b) that Supplier has or will design, develop or create are deemed to be "Confidential Information" of Honeywell. All Confidential Information is work made for hire and made in the course of services rendered. All rights to it belong exclusively to Honeywell, with Honeywell having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection. To the extent that exclusive title or ownership rights in Confidential Information may not originally vest in Honeywell, Seller irrevocably assigns transfers and conveys to Honeywell all right, title, and interest therein.
26.2. Honeywell's Confidential Information will remain the property of Honeywell. It may not be used by Supplier for any purpose other than for performing this Purchase Order, may not be disclosed to any third party, and will be returned to Honeywell upon the earlier of Honeywell's written request or completion of the Purchase Order. If, with Honeywell's prior written approval, Supplier furnishes Confidential Information to a sub-tier supplier, Supplier will bind the sub-tier supplier to confidentiality requirements substantially identical to this provision and Supplier will remain responsible to Honeywell for any breach of this provision by its sub-tier suppliers. No disclosure, description or other communication of any sort will be made by Supplier to any third person of the fact of Honeywell's purchase of Goods hereunder, the terms of this Purchase Order, the substance of any discussions or negotiations concerning this Purchase Order, or either party's performance under this Purchase Order.
26.3. "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Supplier will: (a) treat Personal Data of all Honeywell personnel and prospective Honeywell personnel as Confidential Information; (b) take appropriate technical and organizational security measures as are required by Honeywell to protect Personal Data; (c) use and permit employees and third parties to use Personal Data pursuant to Honeywell's instructions only for purposes directly related to the performance of obligations under this Agreement; (d) refrain from transferring Personal Data out of the European Union unless Honeywell has given its prior consent to the transfer and Supplier has satisfied any further requirements reasonably imposed by Honeywell; (e) indemnify Honeywell against all losses, costs, expenses, damages, liabilities, demands, claims, actions or proceedings which Honeywell may suffer or incur arising out of any breach of this Section 26.3; and (f) promptly notify Honeywell about: any legally binding request for disclosure of Personal Data by a law enforcement agency (unless otherwise prohibited); any accidental or unauthorized processing of Personal Data; and any requests received from individuals to whom Personal Data relates, without responding to that request unless it has been otherwise authorized to do so by Honeywell. If Supplier will process Personal Data that Honeywell transfers from any of its affiliates in the European Union to any of its affiliates in the US pursuant to the U.S. - EU Safe Harbor Framework ("Safe Harbor Personal Data"), Supplier warrants that either (a) Supplier self-certifies to the U.S. - EU Safe Harbor Framework with respect to the processing of the Safe Harbor Personal Data and will notify Honeywell immediately if its self-certification terminates for any reason, or (b) Supplier must provide at least the same level of privacy protection as required by the U.S. - EU Safe harbor Framework.
27.1. Supplier will maintain detailed records reflecting Supplier's compliance with this Purchase Order for at least 5 years from the date of last delivery. Supplier will provide, and will cause each of its sub- tier suppliers to provide, access for Honeywell's auditors, all regulatory authorities and Honeywell's customers to have access at all reasonable times to facilities, books and other pertinent records and any other information as requested by Honeywell's auditors.
27.2. If any invoice submitted by Supplier is found to be in error, an appropriate adjustment will be made to the invoice or the next succeeding invoice following the discovery of the error and the resulting payment/credit will be issued promptly. Supplier will, and will cause its sub-tier suppliers to, promptly correct any other Supplier deficiencies discovered as a result of the audit.
28. Limitation of Liability
HONEYWELL IS NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, COST OF CAPITAL, OR LOSS OF USE OF ANY PROPERTY OR CAPITAL) EVEN IF ADVISED, OR OTHERWISE AWARE, OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE EXCLUSION OF SUCH DAMAGES IS INDEPENDENT OF, AND WILL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY UNDER THESE TERMS AND CONDITIONS.
29. Assignment and Subcontracting
Supplier will not assign this Purchase Order or any rights or obligations under it or subcontract all or any material aspect of the work called for without the prior written approval of Honeywell. Any assignment without Honeywell's written approval will be voidable at the option of Honeywell. Honeywell may assign this Purchase Order or any of its rights or obligations to any of its subsidiaries or affiliates, or to any purchaser or successor to all or substantially all of the assets of the business or product line to which this Purchase Order relates without Supplier's consent and upon written notice to Supplier.
30. Relationship of Parties/Independent Contractor
Nothing in this Purchase Order will be construed to place Supplier and Honeywell in an agency, employment, franchise, joint venture, or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Purchase Order will give rise or is intended to give rise to rights of any kind to any third parties. Neither party will make any representation to the contrary. The parties agree that Supplier will perform its obligations under this Purchase Order as an independent contractor. Supplier has the obligation for Supplier's performance hereunder, including the employment, direction, compensation and discharge of Supplier's personnel, as well as compliance with workers' compensation, unemployment, disability insurance, social security, withholding and all other laws, rules, codes, regulations and ordinances governing such matters.
31. Compliance with Laws and Integrity
31.1. Supplier will comply with all laws, regulations and ordinances and Honeywell's Code of Business Conduct ("Code") in performing this Purchase Order. A copy of the Code may be obtained at www.honeywell.com/sites/honeywell/codeofconduct.htm. Supplier will maintain an integrity and compliance program acceptable to Honeywell and effective in preventing and correcting ethical violations and in maintaining compliance with laws.
31.2. Upon request, in form and substance satisfactory to enable Honeywell to meet its compliance obligations with regard to Regulation (EC) No. 1907/2006 ("REACH"), Supplier will provide Honeywell with complete information regarding the chemical composition of any Goods supplied under this Purchase Order, including all safety information required under REACH and information regarding the registration or pre-registration status of any Goods pursuant to REACH. Supplier agrees that it will include any Honeywell "Identified Use" in its REACH registrations or applications for Authorization, unless Supplier notifies Honeywell that it rejects the Identified Use in order to protect human health or the environment and specifies the reason for the rejection, in which case Honeywell will have the right to terminate this Purchase Order without incurring any damages.
31.3. Absent Honeywell's prior written consent, no Goods will contain any of the substances identified in Article 4.1 of the European Parliament Directive 2002/95/EC (RoHS Directive) as that Directive is updated from time to time, or similar applicable laws or regulations, restricting the use of hazardous materials in other jurisdictions..
31.4. Goods will comply with the restrictions set forth in the Montreal Protocol on ozone-depleting substances.
31.5. Supplier will be responsible for all costs and liabilities for or relating to the recycling of Goods pursuant to the most current version of European Parliament Directive 2002/96/EC (WEEE Directive) as that Directive is implemented in any country.
32. Applicable Law and Forum
32.1. UNITEDSTATES If Honeywell is a legal entity formed in the United States, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto), and the federal or state courts in New York, New York will have exclusive jurisdiction of any dispute.
32.2. ASIA PACIFIC If Honeywell is a legal entity formed in an Asia Pacific country, then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the country under which the Honeywell entity is formed, excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto), and the courts of that country will have exclusive jurisdiction of any dispute except for the following locations where and any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be finally resolved in accordance with the rules of arbitration as noted below. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration and the language of arbitration will be selected by Honeywell.
- China - in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission
- India - in accordance with the arbitration rules of the Indian Arbitration and Conciliation Act 1996
- Singapore, Indonesia, Vietnam, Australia, and New Zealand - in accordance with the arbitration rules of the Singapore International Arbitration Center
- Korea - in accordance with the arbitration rules of the Korean Commercial Arbitration Board
- Hong Kong - in accordance with the arbitration rules of the Hong Kong International Arbitration Center
- Malaysia - in accordance with the arbitration rules of the Kuala Lumpor Regional Arbitration Centre
- Taiwan - in accordance with the arbitration rules of the local Arbitration Act Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this Purchase Order, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator's determination of the merits of the controversy.
32.3. EUROPE, MIDDLE EAST , AND AFRICA If Honeywell is a legal entity formed in a European, Middle Eastern or African country then the construction, interpretation, and performance hereof and all transactions hereunder will be governed by the laws of the country under which the Honeywell entity is formed, excluding the UN Convention on Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto) if applicable in such country, and any dispute arising out of or relating to this Purchase Order, including the breach, termination or validity thereof, will be finally resolved by a panel of three arbitrators in accordance with the Rules for Arbitration of the London Court of International Arbitration. Judgment upon the award rendered by the arbitrators may be entered by any court having jurisdiction thereof. The place of arbitration and the language of arbitration will be selected by Honeywell. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party may also, without waiving any remedy under this agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator's determination of the merits of the controversy.
32.4. OTHERLOCATIONS For those Purchase Orders issued by Honeywell entities formed in countries not identified above, (a) the laws of the country, and if applicable, state or province where the Honeywell entity issuing the Purchase Order was formed will apply and (b) the courts sitting in the country, and if applicable, state or province, where the Honeywell entity issuing the Purchase Order was formed will have exclusive jurisdiction of any dispute. Pending settlement or final resolution of any dispute, Supplier will proceed diligently with the performance of this Purchase Order in accordance with Honeywell's directions.
All Honeywell remedies set forth in this Purchase Order are in addition to, and will in no way limit, any other rights and remedies that may be available to Honeywell at law or in equity.
Notices relating to this Purchase Order must be in writing and may be delivered personally, by overnight courier, or by certified first class mail, postage prepaid (each to the respective addresses appearing on the face of this Purchase Order; sent by fax to the respective fax number provided by Honeywell or Supplier; or sent by electronic mail with proof of delivery to the respective electronic address provided by Honeywell or Supplier. A. Notice will be deemed given on the date delivered if delivered personally; 3 business days after being placed in the mail as specified above; or upon confirmation receipt that it was transmitted satisfactorily if transmitted by fax or electronic mail.
Any news release, public announcement, advertisement, publicity or any other disclosure concerning this Purchase Order to any third party except as may be necessary to comply with other obligations stated in this Purchase Order requires prior written approval of Honeywell.
36. Headings and Captions
Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of any provision of this Purchase Order.
The failure of either party to enforce at any time any of the provisions of this Purchase Order will not be construed to be a continuing waiver of those provisions, nor will any such failure prejudice the right of the party to take any action in the future to enforce any provision.
If any provision of this Purchase Order is held to be illegal, invalid, or unenforceable by a court of competent jurisdiction, that provision will be severed from this Purchase Order; the remaining provisions will remain in full force and effect; and a similar legal, valid and enforceable provision will be substituted in lieu of the severed provision.
39. Supply Chain Security
Supplier will implement the Business Partner Criteria of any Supply Chain Security Program that the country of import for the Goods may adopt such as the U.S. Customs-Trade Partnership against Terrorism (C-TPAT) or the Canadian Partners in Protection (PIP) Program.
All provisions of this Purchase Order which by their nature should apply beyond its term will remain in force after any termination or expiration of this Purchase Order including, but not limited to, those addressing the following subjects: Import/Customs Compliance, Price, Price: Most Favored Customer and Meet or Release, Invoicing and Payment, Set Off, Warranty, Cessation of Production, General Indemnification, Intellectual Property Indemnification, Insurance, Confidentiality and Intellectual Property, Audit, Applicable Law and Forum, Publicity, and Survival.
31. August, 2009