English PO Terms and Conditions
1. Acknowledgment. This order becomes a contract upon receipt by Zebra Technologies Corporation or its affiliate ("Buyer") of a written acknowledgment of this order from the supplier identified on the first page of this order ("Supplier") or upon acceptance by Supplier of Buyer's payment for goods and/or services set forth in Supplier's quotation or invoice accompanying this order, whichever occurs earlier, even though any such acknowledgment, quotation or invoice may state terms additional to or different from those set forth in the order; provided that any such additional or different terms shall not become part of the contract unless Buyer expressly agrees in writing to such additional or different terms. It is a condition of this order that any such acceptance of the terms hereof shall be limited to the terms contained in this order. If Supplier shall fail to acknowledge this order, but Supplier nonetheless commences work on this order, Buyer may, at its option, deem the commencement of such work to be acceptance of this order.
2. Purchase Agreement/Master Services Agreement. In the event that the parties have executed a Purchase Agreement, Master Services Agreement or similar type of agreement regarding the subject matter of this order, in the event of conflict, the terms and conditions set forth in such agreement shall prevail over the standard terms and conditions set forth in this order.
3. Supplier's Invoices. All invoices must be submitted in a timely manner, no later than 30 days following delivery of the goods or services to which they relate. To the extent Buyer receives an invoice more than 30 days following delivery of the goods or services to which the invoice relates, Buyer shall be entitled to a ten percent (10%) discount on the invoiced amount. To the extent Buyer receives an invoice more than 60 days following delivery of the goods or services to which the invoice relates, Buyer shall be forgiven and not be liable for, and shall be fully and unconditionally released from any obligation to pay, full invoiced amount. Nothing in this paragraph is intended to modify any of Supplier's obligations with respect to the goods or services or otherwise under the standard terms and conditions set forth in this order.
4. Inspection. Goods and/or services purchased hereunder are subject to inspection and approval at a location designated by Buyer. Buyer, in its discretion, shall have the right to one or more of the following: (1) reject all or any part of the defective goods and/or services; (2) require Supplier, if practicable, to promptly correct defective goods and/or services, (3) correct the defective goods and/or services in Buyer's own plant when authorised by Supplier, charging Supplier for the cost of correction; or (4) require Supplier to immediately replace the defective goods and/or services at Supplier's expense; provided, however, that if Supplier is unable to supply such replacements, Buyer may replace Supplier's defective goods and/or services and back charge Supplier for any excess costs, provided further, that no rejected goods shall be replaced without Buyer's express written agreement. All goods rejected and returned to Supplier shall be transported at Supplier's expense.
5. Packaging Specifications. Goods purchased hereunder shall be packaged by Supplier in a manner previously approved by Buyer, and each package shall include all artwork, insert cards and other materials approved by Buyer. Supplier shall ship goods to Buyer in packages of sufficient strength for shipment by the mode of transit utilized and constructed so as to minimize damage to goods.
6. Delivery. Time is of the essence with regard to this order. Buyer may cancel this order without liability at any time should Supplier, due to conditions within its reasonable control. fail to make progress in the work required by this order so as to create reasonable grounds for insecurity as to Supplier's performance, and if Buyer in good faith determines that such failure is likely to impair the value of the contract. In the event of such cancellation by Buyer necessitating the procurement of substitute items or services, Buyer may charge Supplier for any loss incurred. Unless otherwise provided in this order or in other written agreement, delivery in whole or in part shall not be made more than 15 days prior to the agreed delivery date or dates, and earlier deliveries may be returned at Supplier's risk and expense.
7. Title. Title to goods purchased hereunder shall pass from Supplier to Buyer when transfer of risks occurs in accordance with the lncoterm stated on the cover page of this order.
8. Changes. Buyer reserves the right at any time, by written order or otherwise, to make changes in or additions to one or more of the following: specification, drawings, instructions supplied to Supplier for the work covered by this order, methods of packing or shipment, and time of delivery. If any such change causes a material increase or decrease in the cost of or the time required for performance of this order, an equitable adjustment shall be made and the order price or delivery schedule or both, adjusted accordingly. Price increases or extensions of time for delivery shall not be binding on Buyer unless confirmed by an authorised representative of Buyer's Purchasing Department.
9. Warranty. Supplier warrants all products, supplies, materials and/or services furnished hereunder to (i) be free from defects in materials, workmanship and design, (ii) fully conform with the specifications, drawings, acceptable quality levels (as shown in purchase order) or samples of Supplier or Buyer, (iii) comply with applicable professional standards and practices, in a timely, professional, and workmanlike manner and (iv) be fit for the use intended by Buyer. This warranty shall survive acceptance and payment for goods and/or services by Buyer and shall be in addition to any warranties of any scope given to Buyer by Supplier. Material made in accordance with Buyer's specifications and drawings shall not be furnished or quoted to any other person or concern without Buyer's written consent. Supplier shall be liable for and save Buyer harmless from any loss, damage or expense whatsoever that Buyer may suffer from any breach of these warranties.
10. Taxes; Fees. Supplier shall bear responsibility for and shall pay when and as due any and all taxes (other than applicable sales and use taxes charged to Buyer). fees or other governmental charges applicable to Supplier's operations.
11. No Use of Buyer's Marks. Supplier and its affiliates and agents shall not use, and shall obtain from Supplier's and its affiliates' officers undertakings not to use, the English or any translation of any trademarks, trade names, brand names, frontmarks, labels or package designs which may now or hereafter be designated by Buyer for Supplier's use in connection with the manufacture or supply of goods or services by Supplier, or any names, marks, labels or package designs similar thereto, except in fulfilling its obligations pursuant to this order. Supplier acknowledges that no right, title or interest in or to any trademark, trade name, brand name, frontmark, label or package design is conferred, assigned or transferred by virtue of this order or otherwise. Supplier may not use, adopt, register or attempt to register as a trademark any word, symbol or emblem which is identical or similar to any of the trademarks, trade names, brand names, frontmarks, labels, package designs, business names or corporate names or part thereof of Buyer, whether during the continuance of this order or after its termination, howsoever arising. Supplier agrees to cooperate freely and promptly with the registration of any new trademark or trade names by Buyer. Furthermore, Supplier may not use Buyer's name or generically refer to Buyer in any media, public announcements, marketing materials, proposals, or other advertising, including websites, without Buyer's prior written consent, which it may grant or withhold in its sole discretion.
12. Design Work. Any design work related to the goods or as requested by Buyer as made by any employee of Supplier shall be the exclusive property of Buyer; and Supplier shall promptly sign and have each of Supplier's affiliates, agents and employees promptly sign, all necessary documents and instruments, as determined and requested by Buyer, to establish Buyer's ownership therein and to have each such person who qualifies as an inventor, as determined by Buyer, to promptly sign all documents and instruments requested by Buyer for purposes of filing patent applications on the development, and any further design thereof, in Patent Offices in all countries throughout the world.
13. Proprietary Information/Property. All information disclosed to Supplier, or obtained or discovered by Supplier as a result of or in connection with this order, including but not limited to drawings, specifications, prints, publications, processes, manufacturing techniques, verbal explanations, schedules, special dies, molds, patterns and any other property furnished to Supplier by Buyer or furnished by Supplier to Buyer (from Buyer's drawing and specifications) pursuant to this order are proprietary property of Buyer. All such property received by Supplier is received in confidence and shall not be reproduced or used by Supplier or transmitted or disclosed to any person or organisation by Supplier, without the prior written consent of Buyer. All such property shall further be subject to removal and return to Buyer upon Buyer's instructions. Without limiting the foregoing, Supplier shall not advertise or otherwise generally disclose the existence of arrangements between Buyer and Supplier or the existence of this order.
14. Patents. Except in the case of goods for which Buyer furnishes complete specifications. Supplier shall indemnify and hold Buyer, it’s affiliates, and the directors, officers, agents, and employees, of each of them harmless from all liabilities, damage, and expense, including reasonable attorney fees, arising from any actual or alleged infringement of any patent, trademark, or other proprietary right by reason of Buyer’s sales or use of any goods furnished by Supplier.
15. Buyer-Furnished Property. The following additional provisions shall, unless specifically otherwise agreed in writing, apply with respect to any and all tools, equipment, material, or other property (hereinafter “Buyer-Furnished Property”) used in the manufacture of goods for Buyer which whether or not listed in this order, are supplied to Supplier by Buyer or are specifically paid for by Buyer.
(a) Supplier shall not, without Buyer’s written consent, use Buyer-Furnished Property on any work other than that done for Buyer.
(b) Title to all Buyer-Furnished Property procured or manufactured by Supplier at all times be an remain in Buyer. Buyer is entitled to file for record with appropriate governmental subdivisions evidence of its ownership of Buyer-Furnished Property, including, without limitation, precautionary UCC-1 financing statements, and Supplier shall provide reasonable cooperation with respect to such matters. Supplier shall keep all Buyer-Furnished Property separate, clearly marked to show Buyer’s ownership, and free and clear of all encumbrances. Supplier shall submit to Buyer an itemized inventory showing the description, location, and identifying marks of all Buyer-Furnished Property. Buyer shall have the right at reasonable times, to enter Suppliers premises and inspect any and all such property. Should Supplier fail to perform its duties hereunder or should Buyer at any time have reason to believe that its title or right to the possession of any Buyer-Furnished Property is threatened, Buyer shall have the right, in addition to any other remedies provided by law, to enter upon Supplier’s property and remove any or all such property and ship the same f.o.b. Supplies plant, to such destinations as may be designated by Buyer.
(c) Supplier shall, at its own expense, perform all maintenance work, repairs, and replacements which may be necessary with respect to any Buyer-Furnished Property so that the same may remain suitable for the use contemplated hereby and may, at any time require by this order, be returned to Buyer in good condition, reasonable wear and tear excepted. Supplier shall give Buyer prompt written notice of any Buyer-Furnished Property which has been supplied by Buyer and which, upon delivery to Supplier, is found defective, and the correction or replacement of such defective property shall be accomplished, at Buyer’s expense, in such manner as Buyer may direct in writing.
(d) The risk of loss or damage to any and all Buyer-Furnished Property on any work other than that done for Buyer shall remain with Supplier.
(e) Buyer shall not be liable for loss, damage, detention, or delay, resulting from causes beyond its control, with respect to any Buyer-Furnished Property to be delivered by it to Supplier.
(f) Supplier shall assume, indemnify, defend and hold harmless Buyer from and against any and all liability for damage to property or injury or death of persons arising from the presence or use of Buyer-Furnished Property while in Supplier’s custody and control, where such damage, injury, or death be caused by defects in the property, negligence in the use thereof, or otherwise.
16. Liability. Notwithstanding anything herein to the contrary, and expect to the extent such liability cannot by law be limited or excluded, under not circumstances will (i) Buyer’s aggregate liability under this contract exceed the amounts invoiced under this order; and (ii) Buyer be liable for any special, punitive indirect, incidental or consequential damages.
17. Indemnity. Supplier shall indemnify, defend and hold harmless Buyer, its affiliates, and the directors, officers, agents and employees of each of them from and against any and all injury, death, damage or loss to persons or property (including reasonable attorneys’ fees) arising out of or incident to Supplier’s performance or non-performance of this order, whether performed by Supplier or otherwise and whether on Supplier’s premises or otherwise, including but not limited to any claim, action, suit or proceeding alleging (i) violation of any statute, regulation or rule of law in the manufacture, assembly, packaging or delivery of goods or services (except in the case of goods delivered in accordance with specifications provided by Buyer); (ii) alleged infringement, misappropriation, or violation by any services or any materials provided by Supplier of any patent, trademark, trade secret, trade dress, copyright or other intellectual property right or confidential information of Buyer of any third party; or (iii) negligent or unlawful act or omission or willful misconduct by Supplier of any of its employees, agents or subcontractors or (iv) breach of any of the terms or conditions of, or representation in, or default in its performance of any of its duties or obligations under this order. Buyer reserves the right, without being requested to do so and without waiver of any indemnity hereunder, to defend any claim, action, suit or proceeding coming with the scope of this indemnity provision. Buyer agrees to promptly notify Supplier in writing of any claim for indemnification and will render to Supplier at Supplier’s expense whatever information and assistance Supplier may reasonable require in connection with such claim.
18. Equal Employment Opportunity. In accordance with Executive Order 11246, Supplier agrees not to discriminate against any employee or applicant for employment because of race, colour, religion, sex or national origin. Supplier will take affirmative action to ensure that Equal Employment Opportunity is implemented in employment, upgrading, demotion and/or transfer, recruitment and/or recruitment advertising; layoff or termination; rates or pay or other forms of compensation; provision of non-segregated facilities for Supplier’s employees’; and selection for training including apprenticeship.
19. Compliance with Laws. Supplier agrees to comply with all relevant domestic an international laws, regulations and administrative requirements, including, without limitation, those governing trans-border sales, resales, shipments, transfers of products, and export control. The foregoing expressly includes all applicable anti-bribery and corrupt practices laws of the United States and any other countries where Supplier renders services under this order.
(a) Foreign Corrupt Practices Act Compliance. Supplier hereby affirms its intent that all activities arising out of related to, or in conjunction with any transactions contemplated under this order or dealings associated with the goods or services performed hereunder shall comply with the United States Foreign Corrupt Practices Act, 15 U.S.C. 78, (hereinafter “FCPA”), and any amendments thereto. Supplier shall neither take nor refrain from taking any action that could result in liability to Buyer under applicable laws, including the FCPA, the OECD Anti-Bribery Convention or any other applicable anti-bribery law or treaty.
(b) Prohibited Payments. In connection with the transactions contemplated under this order, Supplier has not and will not pay, offer, or promise to pay, or authorize payment, directly or indirectly, through third persons or otherwise, of any monies or anything of value to any government official (for purposes of this order the term “government official;” is defined to include officers or employees of a government or any department, agency or instrumentality thereof, or any public international organisation, or any person acting in an official business capacity for or on behalf of any such international organisations and any political party, official thereof or candidate for political office) of any country, for the purpose of: (1) influencing any official act of decisions by such government official; (2) inducing such government official to perform or omit any act in violation of his or her or its lawful duty; (3) securing improper advantage; or (4) inducing such government official to use his or her or its influence with a government or any of its agencies or instrumentalities to affect or influence any act or decision of such government (any such payment is a “Prohibited Payment”). Supplier shall not give, offer or promise to give, or authorize the giving of, either directly or indirectly through any other person, firm or third persons or otherwise, any money or thing of value to any official, employee or family member of any government or state-owned business.
(c) Books and Records. Supplier shall maintain accurate books and records necessary to demonstrate compliance with this Section and will execute all reasonable certifications and disclosure requested by Buyer in connection with the foregoing. Supplier agrees to cooperate fully in any investigation by Buyer of a potential violation of any of this Section. Buyer assumes no duty or obligation to audit or review Supplier’s compliance with this Section.
20. No Use of Prohibited Labour. Buyer does not do business with sellers who manufacture or assemble goods for sale anywhere using Prohibited Labour (as defined below), or who fail to satisfy all applicable laws and standards protecting their employees’ wages, benefits, working conditions, freedom of association, and other rights. Accordingly, Supplier shall not use any Prohibited Labour in manufacturing or assembling goods purchased hereunder. Supplier has verified, to the best of Suppliers ability, that Supplier’s vendors, suppliers and production sources have not used and/or will not use Prohibited Labour in the manufacture of goods, and Supplier has obtained and/or will obtain written certifications to that effect from such vendors, suppliers and production sources, which certifications Supplier has delivered and/or upon Buyer’s request will deliver to Buyer. “Prohibited Labour” means Child Labour (as defined below) or prison, slave, bonded indentured, or involuntary labor. “Child Labour” means a persona younger than the greater of the following: (i) the age for completing compulsory education in the country in which such person employed, (ii) the local legal minimum age for employment, or (iii) sixteen (16) years of age. For the purposes of this subsection, “goods” shall include components of goods. Without in an way limiting Buyer’s other rights and remedies under this order, Supplier shall be in material breach of this order to the extent any goods are made in whole or in part by Prohibited Labour, and, in such event, Buyer shall be entitled to cancel this order, and Supplier shall pay Buyer as liquidated damages and not as a penalty a sum equal to the total cost of goods, all freight, import/export changes and other costs incurred for the shipment or return (or destruction, at Buyer’s election) or seized or re-delivered goods.
21. Compliance with EU Directive 2002/95/EC, Restrictions of Hazardous Substances (the "RoHS Directive"). Supplier shall certify to Buyer Supplies compliance with the RoHS directive and Buyers Corporate Material Content Policy (CPZ-CE-003), or any successor policy, as may be posted from time to time at http://www.zebra.com/environment, and that all materials (including, without limitation, packaging, printers, printer components, assemblies, parts, accessories, media or supplies) supplied to Buyer will be of the same original material composition as certified by Supplier. Supplier also agrees to re-certify all material prior to shipment to Buyer if Supplier changes any sub-supplier or if a sub-supplier makes a material composition change.
22. Compliance with C-TPAT. Buyer is a member of the Customs-Trade Partnership Against Terrorism ("C-TPAT"). As such, Buyer imposes on its suppliers certain security measures regarding C-TPAT found at www.cbp.gov/xp/cgov/trade/cargo security/ctpat/security criteria/ (click on the applicable section). Supplier shall comply with such C-TPAT security measures and shall make any changes to its security measures as recommended by either Buyer or U.S. Customs and Border Protection from time to time. If requested by Buyer, Supplier shall timely complete applicable C-TPAT surveys. Further, Supplier agrees to cooperate with any required verification, audits, reviews or other activities undertaken by U.S. Customs and Border Protection or any other governmental or quasi-governmental agency or representative thereof in connection with C-TPAT.
23. Personal Data. Supplier shall observe and comply strictly with all personal data protection requirements regarding Buyer's employees, customers, or trading partners which arise in connection with any services to be performed under these terms and conditions. To the extent that Supplier provides to Buyer, or otherwise allows Buyer to obtain, personal data about Suppliers employees or contractors in connection with these terms and conditions ("Supplier Personal Data"). including through internet sites, Supplier warrants and represents that it has provided any and all necessary notices to, and obtained any and all privacy consents from, such individuals to authorize Buyer to process such data and disclose such data to its affiliates and others for legitimate business purposes and for purposes of legal compliance, including transferring the data for such purposes to Buyer's affiliates and others located outside the European Economic Area ("EEA") in jurisdictions that may not provide "adequate" or an "equivalent" level of protection to the laws in the EEA.
24. Export Control. Supplier acknowledges its understanding that any products, software or technology, including technical data (collectively, the "Supplied Items"). Supplier receives from Buyer, and any use, export, re-export, re-sale, release or other transfer of any Supplied Item or of any foreign-made product, software or technology that contains or is the product of any Supplied Item may be subject to the jurisdiction of the export controls and trade sanctions of the United States and that such export controls and trade sanctions may be extraterritorial. Supplier represents and warrants that: (i) Supplier is not located in, under the control of, or a national or resident of Cuba, Iran, North Korea, Sudan, and/or Syria and it will not transfer, export, or re-export, directly or indirectly, any Supplied Items to such countries or to any nationals thereof; (ii) Supplier will not use Supplied Items in any activity related to the development, production, use, maintenance, or proliferation of weapons of mass destruction, including, without limitation, uses related to nuclear, missile, and/or chemical/biological development and/or production, and Supplier will not transfer, export, or re-export, directly or indirectly, Supplied Items, including any new products developed from or manufactured using Supplied Items, to any party engaged in any such activity; (iii) Supplier will not transfer, export, or re-export any Supplied Items, including new products developed from or manufactured using Supplied Items, directly or indirectly, to any party identified on a restricted party list published by the U.S. government or any other government. or to any party otherwise prohibited under any applicable law from receiving Product; and Supplier is not on any such restricted party list. nor under the control of an entity on any such list; (iv) Supplier will not transfer, export, or re-export, directly or indirectly, any Supplied Items, including new products developed from or manufactured using Supplied Items, that are subject to the jurisdiction and regulations of a U.S. government or any other government, nuclear regulatory agency and/or defense regulatory agency, without the proper written government authorization, if applicable; and (v) Supplier acknowledges that the use, development, production, transfer, export or re-export of certain Supplied Items may be subject to export and re-export licensing requirements of the U.S. or other nations and Supplier acknowledges that it will comply with all applicable export and compliance laws and regulations whenever it transfers, exports, or re-exports Supplied Items, including new products developed from or manufactured using Supplied Items, and acknowledges that such controlling laws and regulations may be amended from time to time. With respect to the Supplier's transfer, export or re-export sales of the Supplied Items, Buyer shall not be responsible obtaining any necessary export licenses relating to the Supplied Items. In the event Supplier breaches its obligations under this section, Supplier shall be in material breach of its obligations under this order, and Buyer shall be entitled to all of its rights and remedies.
25. Insurance. Without limiting Supplier's obligations under Section 17, Supplier, at its own cost, shall procure, maintain, and keep in full force and effect insurance to protect Supplier and Buyer from all claims that arise out of or result from Suppliers provision of goods and/or performance of services under this order. In particular, Supplier shall maintain standard insurance policies issued by companies in good standing and licensed to do business in Illinois and all other locations where services are to be performed, with coverage written on an occurrence (rather than claimsmade) basis. Within thirty (30) days following the date of this order, Supplier shall provide to Buyer a certificate of insurance, signed by a duly authorised officer or agent of the insurer, certifying the levels of coverage, naming Buyer as a certificate holder and as an additional insured and stating that Buyer will receive at least thirty (30) days' written notice of policy cancellation, non-renewal or material modification.
26. Independent Contractor. Supplier is an independent contractor, and nothing in this order shall be construed to create a partnership, agency, joint venture, pooling, franchise, employer-employee or any other legal relationship or association between the parties. Neither party shall be responsible for the acts or omissions or the compensation, payroll-related taxes, workers' compensation, accident or health insurance or other benefits of employees of the other party. Neither party has the power or authority to act for, represent. or bind the other (or its affiliates) in any manner.
27. Confidentiality. Each party acknowledges that Confidential Information may be disclosed to or learned by it during the course of the performance of the services hereunder. The Company agrees that it shall take all reasonable steps, not less diligent than the steps it takes to protect its own confidential and proprietary information, throughout the term hereof and thereafter, to prevent the duplication or disclosure of the Confidential Information, other than by or to its employees or agents who must have access to such Confidential Information to perform its obligations hereunder and who are legally bound to protect such Confidential Information in accordance with this Section 27. Each party shall ensure that its employees, agents and subcontractors performing services is obligated to maintain the confidentiality of the other party's Confidential Information. "Confidential Information" means any information relating to or disclosed by the one party to the other party in the course of the performance of the services hereunder, which is, or should be reasonably understood to be, confidential or proprietary to the disclosing party, including, but not limited to, information about the disclosing party's customers, technical processes and formulas, source codes, product designs, sales, cost, and other unpublished financial information, product and business plans, projections, and marketing data. Confidential Information shall not include information that was (a) already lawfully and without an obligation of confidentiality known to the receiving party at the time of disclosure by the disclosing party, (b) disclosed to the receiving party in generally available published materials, (c) generally known to the public at the time of disclosure to the receiving party, or (d) was lawfully obtained without an obligation of confidentiality from any third party prior to disclosure to the receiving party by the disclosing party. The receiving party may disclose the Confidential Information to the extent required by law or order of a court or governmental agency; provided, however, that the receiving party first gives the disclosing party prompt written notice and makes a reasonable effort to obtain a protective order or otherwise protect the confidentiality of such Confidential Information, all as directed by and at the disclosing party's cost and expense. Each party recognizes and acknowledges that the other party would suffer irreparable injury from the unauthorized use or disclosure of any of such party's Confidential Information, and each party agrees and acknowledges that the disclosing party shall have the right to obtain injunctive relief against the unauthorized use, disclosure or transfer of any of the Confidential Information, as well as the right to pursue all of its other remedies in equity and at law.
28. Survival. In the event of any termination or expiration of this order for any reason, all provisions of this order whose meaning requires them to survive shall survive the expiration or termination of this order, including but not limited to Sections 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 24, 25, 27 and 29.
29. Miscellaneous. This order contains the entire agreement of the parties, and failure of either party to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder. Buyer’s failure in any instance to insist upon performance of any of the terms or conditions of this order, or to exercise any right or privilege or the waiver of any breach of the terms and conditions shall not be construed as a waiver of any terms, conditions, rights or privileges granted to Buyer herein. No remedy provided herein shall be deemed exclusive of any other remedy allowed by law. The validity, performance, construction and effect of this contract shall be governed by the laws of the State of Illinois. This order shall not for any purpose be governed by the United Nations Convention on Contracts for the International Sale of Goods.