1. Applicability. The purchase order (“Purchase Order”) together with these terms and conditions, which are hyperlinked from the Purchase Order or otherwise provided to Seller, collectively constitute a binding agreement (the “Agreement”) between the Buyer and the Seller (as each is shown on the face of the Purchase Order), and apply to all purchases of products (“Products”) and services (“Services” and together with the Products, “Ordered Items”) by Buyer from Seller, as such Ordered Items may be described on the face of the Purchase Order. In the event of any conflict between the Agreement and any other document or instrument submitted by Seller, the Agreement will govern. Seller must reject Purchase Orders in writing within three days of receipt or the Agreement will be deemed accepted by Seller. Buyer expressly limits acceptance of the Agreement to the terms stated herein. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgment, acceptance, or confirmation used by Seller in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer, however such proposal does not operate as a rejection of the Agreement (unless such variances are in the terms of the description, quantity, price or delivery schedule of the Ordered Items), but will be deemed a material alteration thereof, and the Agreement shall be deemed accepted by the Seller without any additional, different or inconsistent terms. As an exception to the foregoing, any written agreement between Buyer and Seller in effect at the time Buyer submits a Purchase Order that contains terms and conditions that are inconsistent with these terms and conditions will have priority over these terms and conditions.
2. Shipment and Delivery; Alternate Source.
(a) All Products must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Seller. Seller’s name, complete ship to address and Purchase Order number must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons and weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail.
(a) 所有货物都应由卖方 (i) 妥善包装或以其他方式准备好装运，以防止损坏，并最大程度地降低运输和保险费，从而满足承运人的要求，并应 (ii) 根据订单上的说明交付发货。因违反上述规定而产生的费用由卖方承担。所有发票、提货单、装箱单、纸箱和函件上必须载明卖方名称、完整的装运地址以及订单号。必须将提单附于提交的发票上，并载明承运人、装箱数量、货物重量以及装运日期。所有货物必须附有装箱单，并载明详细的装运内容。。
(b) Title to and all risk of loss or damage to Products remains with Seller until receipt by Buyer of conforming Products at the required destination (FCA per INCOTERMS 2010 if shipment is international). Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order (Delivery terms FCA per INCOTERMS 2010 if shipment is international). If delivery is not expected to be made on time, Seller must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late.
(c) Buyer may reject any delivery or cancel all or any part of any Purchase Order if Seller fails to make delivery in conformity with the terms and conditions of the Agreement including, without limitation, any failure of Products to conform to the specifications (“Specifications”) and/or performance criteria published by Seller for Products. Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries. If Seller (i) fails to supply Products, (ii) fails to supply Products meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, and Seller does not provide a comparable quality substitute (for which substitution Seller must assume any expense and price differential), then Buyer may, in its sole discretion, purchase Products from another supplier as an alternate source as Seller, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Products from such other supplier as an alternate source. Upon identification and notification of defective Products or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within one week of the shipment of the defective Product, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence.
(c) 若卖方未按协议规定的条款和条件交货，包括但不限于货物不符合规格（“规格”）和/或达不到卖方发布的货物性能标准，买方可拒绝收货或取消全部或部分订单。买方接收任何不符合规格的货物并不表示其放弃未来拒绝接收货物的权利。若买方 (i) 未能交货，(ii) 交货不符合规格，或 (iii) 未按买方的交货时间表和交货要求交货，且卖方未提供质量相当的替代品（该替代品的任何费用和价格差异由卖方承担），则买方可在其认为必要的情况下自行从作为备用采购源的另一供货商处订购货物。在此情况下，卖方应承担并支付买方因向该其他作为备用采购源的供货商订购货物所产生的所有额外成本和费用。在发现缺陷产品或不合格货物并给予通知后，买方应得到残次品或退还货物的全额抵免，该抵免包括向卖方支付的全部费用以及装运费、加工费和相关费用（如有）。缺陷产品发货一周内，卖方应向买方提交缺陷成因的书面解释以及防止再次发生的整改措施。
3. Prices; Payment. Prices for all Ordered Items will be as stated in the Purchase Order, and include all applicable federal, state, provincial and local taxes; provided, however, that in no event will the price charged by Seller under the Agreement be less favorable than the lowest price charged by Seller to other customers purchasing similar or lesser quantities of the Ordered Items. Payment terms for all Ordered Items will be as stated in the Purchase Order. Buyer shall be entitled to set off any amounts owing at any time from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer or such affiliates in connection with the Agreement.
4. Inspection/Testing. Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect all Ordered Items and to reject any or all Ordered Items that are in Buyer's judgment defective or nonconforming. Buyer may request, at its option, repair or replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Purchase Order may be returned to Seller at Seller's expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.
5. Confidentiality and Proprietary Rights. Any specifications, drawings, sketches, models, samples, tools, technical information, methods, processes, techniques, shop practices, plans, know-how, trade secrets, or data, written, oral or otherwise (collectively, the “Information”) furnished to Seller under, or in contemplation of, the Agreement remain Buyer's property. All copies of such Information, in written, graphic or other tangible form, must be immediately returned to Buyer upon its request. The Information shall be kept confidential by Seller, shall be used only in the fulfillment of Purchase Orders, or in performing Seller’s obligations under the Agreement, and may be disclosed or used for other purposes only upon such terms as may be agreed upon between Buyer and Seller in writing. Seller hereby grants to Buyer a perpetual, transferable and royalty-free license to use, sell, offer for sale, import, distribute, advertise, market and promote Products (including through packaging, repackaging, labeling, bundling and documentation) that incorporate in whole or in part the patent, copyright, trademark, trade dress or other intellectual property rights of Seller. Seller hereby assigns to Buyer, and not otherwise to make use of, any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of the Agreement by Seller or any employee of Seller or any other person working under Seller's direction, and such assignment shall be considered as additional consideration for the making of the Agreement. Upon request of Buyer or completion of performance of the Agreement, Seller shall deliver to Buyer any and all information relating to any such invention, improvement or discovery, and shall cause employees or others subject to Seller's instruction to sign as appropriate all documents necessary to enable Buyer to file applications for patents throughout the world and to obtain title thereto.
6. Warranties. Seller represents and warrants that: (a) all Ordered Items and Seller's performance under the Agreement will (i) conform to all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Seller, (ii) be free from defects in design, material, and workmanship, and (iii) be in compliance with all then applicable laws (whether foreign or domestic), including without limitation laws related to the health and safety of consumers and the protection of the environment and child labor laws; (b) the Ordered Items (including packaging, labeling and documentation) do not infringe upon or violate any intellectual property, right of privacy or other proprietary or property right of any third party; (c) it has the right to grant Buyer a license to any software embedded or incorporated into any Ordered Items; (d) all Services will be performed in a workmanlike manner; and (e) it has complied and shall comply with all laws applicable to its performance under the Agreement. EXCEPT AS EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES UNDER THE PURCHASE ORDER AND EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.保证。卖方承诺并保证：(a) 协议规定的所有订购产品以及卖方的履约将 (i) 与卖方提供的所有适用图纸、规格、描述以及样品一致，(ii) 在设计、材料以及工艺上没有缺陷，(iii) 符合所适用的法律（无论国外还是国内法律），包括但不限于与消费者健康和安全、环境保护以及童工保护相关的法律；(b) 订购产品（包括其包装、标签和文件）不侵害或侵犯任何知识产权、隐私权或任何第三方的其他所有权或产权；(c) 卖方拥有权利向买方授予嵌入或纳入任何订购产品中的任何软件的许可；(d) 所有服务应按照精工细作的方式进行；以及 (e) 卖方已遵守并将继续遵守本协议约定的适用法律。除非在此明文规定，卖方未对订单作出任何明示或暗示的保证，并排除适销性和适用于某特定用途的暗示保证。
7. Termination. Buyer may terminate the Agreement in whole or in part upon 15 days’ written notice to Seller. If Seller defaults in the performance of its obligations under the Agreement and is unable to cure the default within 10 days following notice of the default, Buyer may terminate the Agreement upon written notice. Upon the termination of the Agreement, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Agreement, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers' or subcontractors' plants pending Buyer's instructions. Buyer shall not owe Seller any lost profit or payment for any materials or Products that Seller may consume or sell to others in its ordinary course of business.
7.终止。买方在提前15天通知卖方的情况下可以终止全部或部分协议。如果卖方未履行本协议规定的义务，且卖方接到违约通知后10日之内不能进行补救，则买方可书面通知卖方终止协议。无论买方以何种理由全部或部分终止协议，卖方应该立即：(a) 停止已终止协议下的所有工作，(b) 通知其所有供应商或者是转包商停止作业，以及 (c) 维持并保留卖方、其供应商及转包商工厂中正在进行的作业及已根据协议所采购的材料，等待买方通知。对于卖方在其正常业务过程中消耗的或向他方出售的材料或产品，买方不欠卖方的任何利益损失或款项。
8. Indemnity. Seller shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, attorney fees, and other expenses, relating to or arising out of (a) Seller’s breach of the Agreement; (b) death or injuries to persons or property due to Seller’s breach of the Agreement; (c) the failure of the Products or Seller's performance of the Services to comply with the requirements of the Agreement, or (d) infringement of a third party’s intellectual property rights by any Products (including packaging, labeling and documentation) or Services.
8.赔偿。因下列事项产生的相关索赔、损害赔偿、责任、损失、罚金或判决，卖方应赔偿买方、其附属公司、管理人员、雇员及代理，并使他们免受损害并为他们抗辩：(a) 卖方违约；(b) 因卖方违约造成的身故或人生伤害或财产损失；(c) 货物或卖方履行的服务不符合本协议要求；或 (d) 产品（包括包装、标签和文档）或服务侵犯第三方的知识产权。
9. Catastrophic Defects. Seller shall, within 30 days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labor, administrative costs, shipping costs, replacement product costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Product recall or Product field fix. “Catastrophic Defect” will be deemed to occur when: (a) the representations and warranties set forth in Section 6 are breached with respect to defects occur in (i) 3% or more of the Products shipped within any three-month period, or (ii) 1% of the Products shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Product sold by Seller to Buyer is in excess of the category average for the Product, as determined by Buyer’s records; (c) a single or single group of defects in a Product (any manufacturing defect that affects the Product cosmetically or functionally) is determined by Buyer to impact more than 10% of such Products; (d) a Product (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Products) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Product should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer product safety recall); provided, however, that no Catastrophic Defect will be deemed to occur if the applicable defect results solely from an act or omission of Buyer.
9.严重缺陷。在买方提出要求后30日内，卖方应赔偿买方或其指定的第三方服务提供商因严重缺陷、产品召回或产品现场修理而造成的相关零部件成本、人力费用、管理费用、装运费用、产品更换费用及其他费用（包括合理的律师费用）。以下情形视为严重缺陷：(a) 违反了第6节规定的承诺与保证条款的情况：(i) 任何三个月内装运货物的3%或超过3%出现缺陷，或 (ii) 卖买方之间初始协议的前六个月内装运货物的1%出现缺陷；(b) 根据买方的记录，卖方向买方出售货物的退换率超过了该类产品的平均水平；(c) 买方认为某一产品的单个或单组缺陷（任何影响产品美观或功能的缺陷）影响了该类产品的10%以上；(d) 买方或卖方合理地认为有必要召回产品（包括维修产品所需要的任何维修件、替换件、零件、装配件以及工具）；或 (e) 买方自行决定应从市场中撤回产品（包括但不限于自发性的或强制性的消费品安全召回），以遵守适用法律；但是如上述缺陷仅由买方的作为或遗漏造成，则不视为出现了重大缺陷。
10. Insurance. Seller shall at all times maintain commercial general liability insurance, including products and completed operations liability, with limits and in the form as requested by Buyer, and workers' compensation insurance as required by law. At Buyer's request, Seller shall have Buyer added as an additional insured on the commercial general liability insurance policy and shall furnish Buyer with a certificate of insurance and applicable insurance policy endorsements evidencing such insurance.
11. Limitation of Liability. In no event shall Buyer's aggregate liability for any loss or damage arising out of or in connection with or resulting from the Agreement exceed the price allocable to the Products or Services or unit thereof which gives rise to the claim. Buyer shall not be liable for interest charges or penalties of any description. No lawsuit may be brought against Buyer on account of any breach by Buyer unless the suit is instituted within two years of the date of the breach.
12. Governing Law and Dispute Resolution. The Agreement and all rights and duties under the Agreement are governed by, and construed in accordance with, the laws of the State where Buyer's principal office is located. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Buyer shall have all rights and remedies granted it by the Uniform Commercial Code, without exclusion or limitation. Buyer's rights under the Agreement are in addition to any other legal or equitable remedies it may have against Seller. The parties hereby irrevocably consent to exclusive jurisdiction of, and venue in, State or Federal court in the State where Buyer's principal office is located. Any dispute arising out of or relating to this Agreement (i) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”) by one or more arbitrators appointed in accordance with the ICC Rules and (ii) shall take place in New York, New York. The award of the arbitrator(s) shall be by majority vote (if more than one arbitrator was appointed in accordance with the ICC Rules), shall be in writing, and shall set forth the facts found by the arbitrator(s) to exist. The arbitration award is final and binding upon the parties. Notwithstanding other provisions of this Agreement which may be interpreted to the contrary, the arbitrator(s) shall not have the authority to grant damages to any party hereto that are disclaimed or limited under this Agreement.
12.管辖法律及争议解决。本协议以及其下所有权利和义务均受买方主营业地所在州法律管辖并按其解释。本协议不适用《联合国国际货物销售合同公约》。买方有权享受《统一商法法典》规定的所有权利和补救措施，没有例外或限制。本协议下的买方权利不包括对卖方可行使的任何其他法定或衡平法上的救济权。双方一致同意买方主要营业地所在的州法院或联邦法院对本协议的纠纷享有专属管辖权。凡因本合同引起的或与本合同有关的任何争议：(i)均应根据国际商会（“the International Chamber of Commerce”）仲裁规则（以下称“ICC仲裁规则”）由一名或多名仲裁员进行仲裁； (ii)仲裁地点应在纽约州纽约市。仲裁裁决应依据仲裁员的多数票决定（若依据ICC仲裁规则有超过一个仲裁员被指定进行相关仲裁）。仲裁裁决应采用书面形式，并应当载明仲裁员认定的相关事实。仲裁裁决是终局的，对双方均有约束力。尽管本协议其他条款可能会被解释为相反的意思，仲裁员无权授予本协议下被放弃或限制的损失给任何一方。
13. Compliance Matters. Seller must comply with all Buyer policies applicable to Seller, including without limitation, the Nortek, Inc. (“Nortek”) Code of Business Conduct and Ethics found at http://investors.nortek-inc.com/phoenix.zhtml?c=97805&p=irol-govhighlights. Seller must strictly comply with all applicable statutes, laws and regulations (“Laws”), including without limitation, all applicable environmental, health and safety, trade, and import/export Laws.
14. Conflicts Minerals Compliance. The Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 1502 and related Securities and Exchange Commission (SEC) rules (Conflict Mineral Law) requires that Nortek publically disclose via annual SEC filings the country of origin of “Conflict Minerals” contained in products Nortek manufactures or contracts to manufacture. “Conflict Minerals” include tin, tantalum, tungsten, gold and relevant ores and derivatives (3TG). Seller is required to comply with the Nortek Conflict Minerals Policy, which, at a minimum, means performing the following activities:
- Establish a conflict mineral policy consistent with Nortek’s policy, implement management systems to support compliance with its policy and require its suppliers of any tier to take the same steps.
- Complete Nortek’s Conflict Minerals survey, identifying products, components and materials containing 3TG minerals (3TG Product) it sells to Buyer and the smelter that provided the original 3TG mineral. Buyer’s direct suppliers may have to require successive upstream suppliers to complete Nortek’s Conflict Minerals survey until the smelter is identified.
- On an annual basis, provide a report to support Nortek’s SEC reporting requirements.
- Ultimately, supply “Conflict Free” 3TG Product. Once the supply chain is identified, commit to purchasing from smelters which are certified as conflict free by a recognized program such as the Conflict Free Smelter (“CFS”) program.
Buyer shall evaluate its supplier relationships on an ongoing basis to ensure continued compliance. Buyer reserves the right to request additional documentation from its suppliers regarding the source of any conflict minerals included in its 3TG Products. Buyer expects all suppliers to perform these activities in “good faith” and work towards eventual conflict-free status. Buyer shall establish reasonable remediation steps and action plans where necessary.
15. Anti-Corruption. Seller shall at all times conduct its activities in accordance with all applicable laws, rules, regulations and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 and all national, state, provincial or territorial anti-bribery and anti-corruption statutes. Accordingly, Seller shall make no offer, payment or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any Buyer employee or agent, any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given or promised for the purpose of influencing any decision or act to assist Seller or Buyer or otherwise obtaining any improper advantage or benefit.
16. General. The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege. The Agreement may be amended or modified only by a written instrument separately signed by Buyer or Seller. Seller shall not subcontract or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's consent. The provisions of Sections 5-9, 11, 12 and 16 survive termination of the Agreement.