STANDARD TERMS AND CONDITIONS OF PURCHASE
Except as otherwise agreed in writing by nVent and/or its affiliates, the following standard terms and conditions of purchase will apply to all orders placed by nVent:
Except as otherwise agreed in writing by nVent and/or its affiliates (together, the “Customer”), the following standard terms and conditions of purchase will apply to all orders placed by nVent:
1. Scope of Services.
a. On receipt of a purchase order, Supplier will deliver goods in accordance with the specifications provided by Customer. The pricing and delivery details contained in the purchase order are fixed.
b. No amendment to or modification of these terms or a purchase order will be valid or binding unless in writing and signed by the parties.
2. Payment. Payment will be due in full ninety (90) days from the date of invoice receipt by Supplier. Customer will have the option to reduce the invoiced amount by 2% provided payment is made within 30 days of the date of receipt of the invoice (2% 30, Net 90 Payment Terms). Unless otherwise agreed by the parties in writing, no invoices for an Order will be accepted 120 days after acceptance of the goods on that Order.
3. Relationship. It is expressly stipulated by the parties that Supplier is an independent contractor and has no authority to act for or on behalf of Customer or to bind Customer to any obligation or in any other manner unless otherwise agreed in writing between the parties. Neither party intends, nor will anything contained in this Agreement be construed, to establish a partnership or joint venture between the parties.
4. Shipment, Delivery, and Title Transfer. The goods will be delivered FCA Buyer’s address on the Order (INCOTERMS 2010) on the delivery date contained on the Order. Title and risk of loss to the goods will pass upon Customer’s (or its representative’s) acceptance of the goods at the delivery point. The parties agree that time is of the essence. In the event that any shipment will not be delivered in full within the time frame set forth on the Order, Customer may, in its sole discretion, require expedited delivery, any and all costs and expenses of which will be paid solely by Supplier.
5. Confidentiality and Safeguarding of Data. Supplier agrees that Customer has all rights, title and interest in all trademarks, documentation and files and related other results shared or generated in the course of the work contemplated by the Order. Supplier agrees not to use in any manner the trade name or trademarks, service name, or service marks of Customer, or refer to Customer, its parents, or its or their subsidiaries, affiliates, without receiving the express prior written consent of Customer.
All physical items, if any, including, but not limited to, drawings, reports, specifications, plans and other documents and items pursuant to the work contemplated by the Order will be considered to have been produced as a work made for Customer for hire and Customer will own the copyright thereto and all of the rights comprised in the copyright. Supplier hereby agrees that all such physical and electronic items will be delivered to Customer in such manner and at such time as Customer may direct in writing.
Supplier will not disclose Customer IP or other confidential information to others except where, prior to disclosure, Customer so agrees in writing. Customer IP or other confidential information will not include matters or things known to the general public or to Supplier prior to the date of this Agreement and such knowledge was not the result of a breach of any other confidentiality obligation of Supplier.
6. Compliance with Laws.
a. Supplier will comply with all federal, state, provincial, and local laws while performing work under this Agreement. This includes all laws relating to anti-bribery, conflict minerals, anti-slavery, regulations regarding hiring individuals with disabilities and veterans, data privacy, anti-boycott, anti-discrimination, environmental health and safety, and import and export of goods and data. Supplier is responsible for obtaining any authorizations from any applicable government authority that may be required to perform the work contemplated by the Order. Supplier warrants that it will at all times be compliant with all laws relevant to the performance of its work under the Order, including.
b. Supplier agrees to comply with the nVent Supplier Code of Conduct.
c. This Article is a material provision of this Agreement, and Customer may terminate this Agreement for Supplier’s default for a failure to comply with any part. Supplier further agrees to indemnify Customer against any claims or fines directly related to Supplier’s breach of this provision. Supplier will work with any governmental agency at its own expense to correct any violations of law or regulation to achieve the essential purpose of the Order.
a. Cancellation. Orders may be cancelled upon written notice from Customer at least 30 days prior to shipping date and upon payment for all completed products at the unit price.
b. Obsolescence. In the event that either Supplier or Customer will cause the goods to become obsolete during the Term of this Agreement, it will notify the other at least ninety (90) days prior to the date of the intended obsolescence. Upon the aforementioned notice, Customer and Supplier will mutually agree upon a quantity for a last-time-buy of the goods, and such last-time-buy will be governed by the terms and conditions of this Agreement. Additionally, the parties have the option to discuss developing a form-fit-function Good or amicable substitute.
8. Quality and Manufacturing. If Supplier is a manufacturer, then:
a. Quality Control. Supplier will manufacture the goods in strict accordance with the any specifications given to Supplier and will comply with the manufacturing and quality assurance and control requirements under any and all applicable laws, codes, regulations, guidelines and the like, including, but not limited to, all good manufacturing process guidelines for the intended market of the goods.
b. Manufacturing. Supplier represents and warrants to Customer that it will not, without Customer's prior written approval: (a) manufacture the goods at any location other than that identified on; (b) cease manufacturing the goods at the location previously identified in writing; (c) alter or remove any manufacturing process; or (d) discontinue producing the goods. If Supplier fails to comply with the preceding sentence, Customer will be entitled to return any affected goods and will receive, at its sole discretion, a credit against Customer's next invoice or any other amount due and payable to Supplier, or a refund in the purchase price paid by Customer to Supplier for the goods (including any shipping, freight or similar costs). Breach of this Section will be a material breach of this Agreement.
9. Delay and Force Majeure. Neither party will be in breach of this Agreement as a result of any delay in performing its obligations if such delay is due to acts of God, war, of the public enemy, civil disorder, riot, pandemic, medical quarantine or restriction, fire, flood, earthquake, or any other cause which is beyond the reasonable control of the delayed party.
10. Warranties and Guarantees. Supplier warrants that the work to be performed and all materials and equipment to be furnished under this Agreement will be free from defects in material and workmanship. If Customer finds a defect in material or workmanship, Customer will give Supplier written notice and Supplier will promptly correct all such defects at Supplier’s sole expense. Supplier further warrants that it will convey good title in the goods to Customer and that the goods will be free from any liens, charges and encumbrances or any other third party claims.
Supplier warrants that at all times, the goods and services included in each Order will be free of any liens or encumbrances and that title to the materials and equipment will have vested in Customer free and clear of all liens and encumbrances. If there are any such liens or encumbrances, Supplier will cause them to be discharged promptly after being notified of their existence.
Supplier warrants that Supplier is skilled, knowledgeable, and experienced in performing work of the same nature and magnitude as the work detailed in the Order. Supplier warrants that it will perform the work contemplated by the Order continuously, diligently, and that Supplier will engage only skilled and knowledgeable personnel to perform the work, and in sufficient numbers to deliver the goods on the schedule provided in the Order.
In addition to the warranty set forth above, Supplier will assign all warranties provided by Supplier’s vendors and suppliers of material and equipment included in the Order to Customer.
11. Insurance. Supplier will, at its own expense, provide and keep in full force and effect during the term of this Agreement public liability insurance and product liability insurance in respect of the goods for a minimum amount of $1 million per occurrence and Workers’ Compensation and Employer’s Liability insurance as required by the laws of the jurisdiction in which the services are performed. Customer may from time to time as reasonable require production of certificates of currency to ensure that Supplier has complied and continues to comply with this clause.
12. Indemnity and Liability. To the fullest extent permitted by law, Supplier will defend, indemnify and hold harmless Customer and its respective officers, directors, agents and employees from and against all claims, damages, losses and expenses, (including legal costs on a full indemnity basis) fees, arising out of or resulting from the acts or omissions of Supplier, its subcontractors, officers, directors, employees or agents in connection with this Agreement, including, without limitation, any damage to Customer’s property or the injury or death of any person.
Neither party will be liable to the other party for any loss of profits or revenues or loss of business opportunity or damage to reputation, or for any indirect, incidental, or consequential damages of any nature under any cause of action whether based on contract, warranty, tort including negligence, strict liability, contribution, or other cause of action in any way related to this Agreement or the subject matter hereof; except that nothing in this paragraph will limit Supplier’s right to be compensated in accordance with the provisions of this Agreement and nothing in this paragraph will limit Supplier’s obligations to indemnify and defend Customer under this Article.
13. Applicable Law and Consent to Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Minnesota regardless of where services are performed, and this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. The parties hereby agree that the sole and exclusive form for any litigation arising out of this Agreement will be any appropriate state or federal court located in Minnesota. EACH OF THE PARTIES HEREBY VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATED TO A DISPUTE. The rights and obligations of the parties under this Agreement will not be governed by the provisions of the 1980 U.N. convention on Contracts for the International Sale of goods.
a. Invalidity. If any term or other provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule or law, or public policy, all other conditions and provisions of this Agreement will remain in full force and effect so long as the economic or legal substance of the transaction contemplated is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the legal enforcer (e.g. the judge) will, in good faith and to the fullest extent possible, modify the term or other provision of this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner so that the transaction contemplated is fulfilled.
b. Waiver. A failure by either party to exercise its rights under this Agreement will not preclude that party from a subsequent exercise of such rights and will not constitute a waiver of any other rights under this Agreement.
c. Assignment. All assignment or delegation of a Purchase Order by either party requires the express written approval of the other party, which will not be unreasonably withheld. All the terms and provisions of said Purchase Order will be binding upon, will inure to the benefit of and will be enforceable by the parties and their respective successors and permitted assigns. Any attempt at assignment or delegation in derogation of this provision is null and void.
d. Remedies Exclusive. The rights and remedies are expressly set forth in these terms are sole and exclusive and the parties waive any and all other rights and remedies at law and equity.
e. Survival. The obligations imposed on the parties to these terms pursuant Articles entitled Confidentiality, Indemnity and Liability, Applicable Law and Consent to Jurisdiction, and Miscellaneous of these terms will survive the conclusion, expiration, or termination of a Purchase Order.
f. Order of Precedence. If there is a conflict between the texts of these terms, any Purchase Order, or supporting document issued hereunder, these terms and conditions will control. Wherever possible, provisions will be construed as complementary rather than conflicting.
g. Entire Agreement. These terms constitutes the entire agreement between the parties, notwithstanding any verbal or written statement, promise, or agreement by an officer, employee, agent, or representative of either of the parties.
©nVent, Rev. May 1, 2018 Procurement APAC Terms