The following terms and conditions ("Terms") shall govern the purchase of goods and services between Subaru of America, Inc. ("SoA") and its vendors (each, a "Vendor"), unless and until such applicable Vendor and SoA enter into a final definitive agreement dually executed by both parties covering the purchase of such Services (as defined below), in which case the terms and conditions of said definitive agreement shall prevail to the extent they are inconsistent with these Terms.
DEFINITIONS:
In addition to the defined terms otherwise contained in this document and associated Order, the following terms shall have the following meanings unless context otherwise requires:
A. "Goods" means goods, materials and other tangible items, including Deliverables (defined below), produced and/or delivered by Vendor to SoA under the Order.
B. "Order" means any contract, order, purchase order, statements of work, change orders, or other agreements that sets forth the goods and services to be purchased by SoA from Vendor.
C. "Subaru Facility" means any building or facility to the extent owned, leased or otherwise controlled by SoA or its affiliates where any obligation under the ORDER is to be performed.
D. "Services" means the services, tasks and Goods which Vendor will provide or render for or on behalf of SoA under the ORDER.
E. "Vendor Personnel" means officers, directors, employees, agents, subcontractors, and anyone acting for or on behalf of Vendor.
OFFER; ACCEPTANCE; EXCLUSIVE TERMS.
Each Order incorporates by reference and is governed by these Terms. By accepting the Order and/or performing thereunder, Vendor will be deemed to have accepted these Terms. Each Order is limited to and conditional upon Vendor’s acceptance of these Terms exclusively. These Terms are available at vendors.subaru.com/facilities ("Site"). SoA may unilaterally modify these Terms at any time by posting a revised version on the Site, and it is Vendor’s responsibility to check the Site regularly for modifications. Vendor’s acceptance of the Order after the effective date of the revised version constitutes Vendor’s acceptance thereof. These Terms prevail over any of Vendor’s general terms and conditions of sale, lease, or service, regardless whether or when Vendor has submitted such terms and conditions or its confirmation of the sales, lease or service. The Order and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede any and all prior written and oral agreements or understandings regarding the Services covered by the Order. The Order may be amended or modified only by a writing executed by both parties.
NON-EXCLUSIVE ARRANGEMENT
This Agreement is not an exclusive arrangement. SoA shall nave no minimum purchase requirements hereunder and shall be entitled, in its sole discretion, to purchase Services from any third party.
HARDWARE, SOFTWARE, AND SERVICES.
A. Order; Acceptance. Vendor shall perform the Services as designated in the Order. Except as otherwise stated in the Order, acceptance by SoA of the Services shall occur when such Services have been fully performed (including the satisfactory delivery, inspection, and installation of the Goods), and the Services meet all applicable performance criteria set forth in the Order. SoA shall inspect and notify Vendor in writing of acceptance or rejection within a reasonable time from the date the Services have been received. SoA’s payment of any invoice shall not be deemed to be acceptance of the Services. SoA’s acceptance of the Services shall not be construed as evidence that such Services conform in all respects with the requirements for such Services set forth in the Order, or as a waiver of Vendor’s warranty obligations as contained herein. Vendor shall keep the Services, Goods and Subaru Facilities free and clear of any and all liens, encumbrances, and claims.
B. Subaru Facilities and Property. Vendor shall (i) ensure that all Vendor Personnel performing services at a Subaru Facility are legally eligible to work in the United States and the state in which such services are being performed and (ii) complete, execute, and maintain all forms and documentation (including a federal Form I-9) for all such Vendor Personnel. While at a Subaru Facility, Vendor and Vendor Personnel will conduct themselves (including attire) in a business-like and professional manner and will comply with SoA’s reasonable requests, rules and regulations regarding personal conduct, including all safety and security rules, regulations, and procedures (including security procedures concerning systems and data and remote access thereto) of which Vendor has been notified or of which Vendor should reasonably be aware. When performing Services at a Subaru Facility, Vendor will examine the Subaru Facility to determine whether the Facility is safe for the Services and will advise SoA promptly of any situation it deems unsafe. Vendor shall be solely responsible for, and SoA shall have no liability for, any loss, expense, damage, or claim arising out of, or in connection with, the performance of Services at a Subaru Facility. All tools, equipment and other property either furnished by SoA to Vendor or individually paid for by SoA shall remain the property of SoA, but Vendor assumes the risks of, and shall be responsible for, any loss thereof or damage thereto, until returned in good order to SoA. Vendor shall at all times safely store and properly maintain such property.
C. Records. Vendor shall maintain complete and accurate records relating to the provision of the Services, including records of the time spent and materials used by Vendor in providing the Services, in such form as SoA shall approve. During the term of the Order and for a period of two (2) years thereafter, upon SoA’s written request, Vendor shall allow SoA to inspect and make copies of such records and cooperation from Vendor personnel in connection with the provision of the Services.
D. Shipping; Risk of Loss; Title. Vendor shall coordinate shipping and delivery of Goods to SoA. Except as otherwise stated in the Order, Vendor must ship the Goods deliver duty paid to the address specified in the Order ("Delivery Point") during SoA’s normal business hours or as otherwise instructed by SoA. Except as otherwise stated in the Order, Incoterms 2010 shall apply to all shipments. Notwithstanding anything to the contrary, unless specified in the Order, title and risk of loss or damage to the Goods shall pass to SoA upon delivery, without prejudice to SoA’s rights to reject or return the Goods pursuant to these Terms
E. Packing. Vendor shall pack all Goods for shipment in a manner sufficient to ensure that such Goods are delivered in undamaged condition. Damaged or non-conforming items will be returned to Vendor at Vendor’s expense. Vendor must provide SoA prior written notice if any packing material must be returned, and any such return shall be made at Vendor’s risk of loss and expense.
F. Subcontractors. With SoA’s prior written consent, Vendor may engage subcontractors to perform the Services or other obligations to be performed by Vendor under the Order, provided that Vendor will remain fully responsible for the work and activities of such subcontractors. Vendor represents and warrants that each subcontractor shall be subject to all of Vendor’s obligations, responsibilities and warranties under the Agreement, and that Vendor will ensure the compliance of all subcontractors with the terms (including insurance requirements and confidentiality provisions) of the Agreement. Nothing contained in this Agreement shall create any contractual relationship between SoA and any subcontractor engaged by Vendor.
G. Time and Quantity of the Essence. Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder and the timely delivery or performance of Services, and Vendor shall strictly comply with all such obligations, including all performance dates, timetables, project milestones and other requirements of the Order. Vendor shall promptly notify SoA in writing of any and all events which could affect the fulfillment by Vendor of its obligations under the Order. In such circumstances, SoA may exercise any and all rights it may have pursuant to the Order. The fact that such notice is given shall not affect or diminish any obligation of Vendor. SoA is not obligated to accept early, late, partial or excess deliveries.
COMPLIANCE WITH THE LAW; SUPPLIER CONDUCT.
Vendor shall comply with all applicable laws, regulations and ordinances. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Vendor shall ensure that all Vendor Personnel, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services. Vendor agrees to maintain the highest standards of moral, legal and ethical conduct and to safeguard and promote the reputation of SoA and its products.
SOCIAL RESPOSIBILITY; COMMITMENT TO DIVERSITY.
Vendor understands that SoA expects and requires its vendors to display a high level of social responsibility and to comply with all applicable labor and employment laws. Vendor represents that it maintains safe and healthy working environments for its workers that meet or exceed applicable standards for safety and occupational health and that it does not tolerate or engage (a) in the use of forced labor, including human trafficking, (b) in the use of child labor other than the lawful temporary employment of minors in accordance with applicable law, or (c) in the employment of minors in a capacity that exposes them to hazardous work. In addition to the representations and covenants set forth herein, Vendor acknowledges SoA’s commitment to diversity and, in turn, agrees to demonstrate its own commitment to diversity when staffing personnel for the provision of the benefits provided by it hereunder, or its satisfaction of its obligations pursuant hereto.
INTELLECTUAL PROPERTY.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to SoA under this Agreement or prepared by or on behalf of Vendor in the course of performing the Services (collectively, "Deliverables") shall be owned exclusively by SoA. Vendor agrees, and shall cause Vendor Personnel to agree, that the Deliverables are "works made for hire" as that term is used in connection with the U.S. Copyright Act. To the extent that, by operation of law, Vendor or any of its personnel owns any Intellectual Property Rights in such Deliverables, Vendor hereby irrevocably assigns and transfers, or shall have irrevocably assigned and transferred, to SoA all rights, title and interest in such Deliverables. Vendor agrees to cooperate with SoA in the protection of, and securing SoA’s rights in, the Deliverables, including the execution of any documents necessary to secure such rights, whether during or after the term of this business relationship with SoA. Vendor shall cause Vendor Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Personnel may now or hereafter have in any jurisdiction the so-called "moral rights" with respect to the Deliverables. In providing the Services, Vendor may use third party materials, provided that Vendor shall disclose in writing to SoA any third party materials that are incorporated or embedded into any of the Deliverables. Vendor warrants that: (a) it has all rights needed to use the third party materials for purposes of providing the Services under this Agreement; and (b) SoA has a perpetual, worldwide, royalty-free license to use such third party materials as part of such Deliverables.
PRICE.
The price for the Services is the price stated in the Order ("Price"). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including but not limited to all sales, use or excise taxes. No increase in Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of SoA. All travel undertaken by Vendor and Vendor Personnel pursuant to the Order shall be at the Vendor’s expense.
PAYMENT TERMS.
Vendor shall invoice SoA for the Services on or any time after the completion of delivery and performance of such Services. Except as otherwise stated in the Order, (a) SoA shall pay all properly invoiced, non-disputed amounts due to Vendor based on a Net 30 day payment term; and (b) all payments must be made in U.S. Dollars and made by such method as directed by SoA. Without prejudice to any other right or remedy it may have, SoA may set off and recoup against its accounts payable to Vendor any amounts for which SoA determines in good faith Vendor or its affiliates is liable to SoA under any other Order with Vendor or its affiliates. The parties shall seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing its obligations under this Agreement notwithstanding any such dispute.
CONFIDENTIAL INFORMATION.
All of SoA’s non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by SoA to Vendor in connection with this Agreement, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential", is confidential and may only be used by the Vendor for the sole purpose of performing its obligations under this Agreement, and may not be disclosed or copied unless authorized in advance by SoA in writing. Upon SoA’s request, the Vendor shall promptly return all documents and other materials received from SoA. SoA shall be entitled to injunctive relief for any violation of this Section 10. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; (c) rightfully obtained by the Vendor on a non-confidential basis from a third party; or (d) developed by the Vendor without reference to or use of any of SoA’s confidential or proprietary information.
REPRESENTATIONS AND WARRANTIES.
The representations and warranties set forth below are in addition to any warranties set forth in the Order or elsewhere in this Agreement:
A. Each party represents and warrants that: (i) it is a corporation or other entity duly incorporated or organized, validly existing, and in good standing under the laws of the state of incorporation or organization in each jurisdiction in which it is foreign qualified to transact business; (ii) it has all requisite power and authority to execute, deliver and perform its obligations under this Agreement; (iii) the execution, delivery and performance of this Agreement has been duly authorized by such party; and (iv) this Agreement will constitute the valid and legally binding obligation of such party, enforceable against such party in accordance with its terms.
B. Vendor represents and warrants that (i) the Services will be performed in a prompt, professional and workmanlike manner, in accordance with industry standards, (ii) Vendor has the expertise and resources necessary to undertake and complete the Services in accordance with the specifications and timeframes set forth in the Order, and (iii) conditions at the Subaru Facility will not affect Vendor’s performance of the Services at that Facility in accordance with such specifications and timeframes ("Services Warranty"). Promptly after SoA notifies Vendor of any defect or non-conformity, Vendor shall, at SoA’s option, either (x) re-perform the Services without additional fees or charges to SoA, or (y) refund the Service portion of the Price for any Services that do not conform to the Services Warranty.
C. Vendor represents and warrants that Vendor, and any Services supplied by Vendor, will comply with all applicable laws, including without limitation laws relating to environmental matters, hiring, wages, hours and conditions of employment, international prohibitions on child labor, subcontractor selection, discrimination, occupational health or safety, and motor vehicle safety.
D. Vendor represents and warrants that (i) it has good and marketable title to all Goods, (ii) the Goods will be free from any liens, claims, encumbrances, and interests of third parties, and (iii) it has all requisite power and authority to transfer title to the Goods to SoA.
E. Vendor represents and warrants that (i) all Goods will be free of defects in design, materials and workmanship, be merchantable and be fit and sufficient for the particular purpose intended by SoA and shall conform in all material respects to all applicable laws and regulations at the time the Goods were produced; (ii) the documentation provided by Vendor will be correct, free from defects and in sufficient detail to permit SoA to properly and safely operate and maintain the Goods; (iii) the Goods shall perform in accordance with the performance requirements set forth in the Order; (iv) Vendor has the expertise and resources necessary to produce and deliver the Goods in accordance with all the requirements and specifications set forth in the Order; and (v) the condition of the Subaru Facility where the Goods will be used will not affect the use of the Goods in accordance with all the requirements and specifications set forth in the Order ("Goods Warranty"). Promptly after SoA notifies Vendor of any defect or non-conformity, Vendor shall, at SoA’s option, either (x) replace, (y) repair, or (z) refund the Goods portion of the Price for any Goods that do not conform to the Goods Warranty
F. Vendor represents and warrants that the Services and all intellectual property or proprietary materials provided to SoA under this Agreement are either Vendor’s original work, are public domain materials or are owned by a third party from whom Vendor has acquired all necessary permissions to grant the rights under this Agreement. Furthermore, Vendor warrants that neither its provision of the forgoing, nor SoA’s receiving or use of the same as provided under this Agreement, infringe or misappropriates the intellectual property rights of any third party.
G. The representations and warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of SoA’s discovery of the noncompliance of the Services and Goods with the foregoing warranties.
GENERAL INDEMNIFICATION.
Vendor will, at its expense, indemnify, defend and hold harmless SoA and its affiliates, and their respective personnel, successors and assigns (each a "SoA Indemnitee"), from all losses, liabilities, damages, and claims, and all related costs and expenses (collectively, "Losses"), claimed by any third party in any claim, demand, suit or proceeding ("Claim") in connection with any of the following:
A. The breach or misrepresentation by Vendor of its obligations or warranties to SoA under this Agreement or the Order.
B. (i) The death or bodily or personal injury of, or other legally enforceable damage incurred by, any agent, employee, customer, business invitee, or business visitor or other person, and/or (ii) the damage, loss or destruction of any real or personal property, caused by the breach of contract, breach of warranty, gross negligence, intentional or willful misconduct, errors or omissions of Vendor or Vendor Personnel; and
C. Claims by Vendor Personnel that they are entitled to any benefits normally associated with employment at SoA.
D. In no event shall Vendor enter into any settlement without the SoA Indemnitee’s prior written consent.
LIABILITY LIMITATION.
SoA’s aggregate liability to Vendor for any direct damages resulting from or in any way connected with SoA’s performance of its obligations under this Agreement shall not exceed in the aggregate an amount equal to the Price of the Services that gave rise to the claim during the 12 months before the liability arose. Neither party shall be liable to the other party for any special, indirect, incidental, consequential, or punitive damages ("Excluded Damages"), whether based upon contract, tort or any other legal theory, whether foreseeable or not, and even if the applicable party has been advised of the possibility of Excluded Damages. This Excluded Damages limitation shall not apply to the parties’ confidentiality obligations, warranty obligations, or indemnification obligations under this Agreement.
FORCE MAJEURE.
Any delay or failure of either party to perform its obligations will be excused if and to the extent the party is unable to perform due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; flood, fire, or earthquake; war, hostilities, terrorism; government order, law or action; or embargoes or blockades. The affected party shall give notice within 1 business day of the force majeure event to the other party, stating the period of time the occurrence is expected to continue, shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized, and shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. If delay on the part of Vendor lasts longer than 5 days, SoA may terminate the Order without liability, and Vendor shall reimburse SoA for any termination costs.
INSURANCE.
At all times while this Agreement is in effect, Vendor will maintain in force, and cause its subcontractors to maintain in force, at each parties own expense, with financially sound and reputable insurers, insurance of the type and in the amounts sufficient to cover its respective indemnification requirements under this Agreement.
TERMINATION.
SoA may terminate this Agreement at any time without cause upon 14 days’ prior written notice to Vendor. Either party may terminate this Agreement immediately upon written notice if the other party breaches any of its material duties or obligations under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the defaulting party within 10 days after the defaulting party receives notice of such breach. If either party becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the other party may terminate this Agreement upon 10 days’ written notice.
EFFECT OF TERMINATION.
If SoA terminates this Agreement for any reason, Vendor’s sole and exclusive remedy is payment for the Services accepted by SoA and properly performed and completed by Vendor prior to the termination. Following the termination or expiration of this Agreement: A. Vendor shall promptly invoice SoA for any outstanding amount due and owing under the Agreement, and SoA shall pay all such amounts to Vendor in accordance with the payment terms set forth in Section 9; B. each party shall promptly return to the other party all Confidential Information, except for business records required to be retained by law; and C. Vendor shall, at SoA’s request, provide transition assistance services as reasonably requested by SoA for a period of up to 90 days after the date of termination or expiration.
NOTICES.
All notices, requests, consents, demands, and other communications hereunder (each a "Notice") shall be in writing and be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). All Notices to SoA shall be sent to One Subaru Drive, Camden, New Jersey 08103, attention General Counsel. notices to Vendor shall be sent to its address as set forth in the Order. Either party may, upon written notice to the other party, change its notice address under this Agreement.
ASSIGNMENT.
Vendor shall not assign or sublicense this Agreement without the prior written consent of SoA. Any attempted assignment or sublicense without such consent will be void.
RELATIONSHIP OF THE PARTIES.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
WAIVER.
No failure to exercise, or delay in exercising, any right or power under this Agreement ("Right") operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right.
NO THIRD-PARTY BENEFICIARIES.
This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third-party beneficiaries under this Agreement.
SEVERABILITY.
The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
SURVIVAL.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.
GOVERNING LAW.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any conflict of laws provisions thereof.
DISPUTE RESOLUTION.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts in each case located in Camden, New Jersey. Each party irrevocably an unconditionally submits to the exclusive jurisdiction of such courts and waives any right to trial by jury in any such suit, action or proceeding.
CLAIMS BY VENDOR.
Any legal action or proceeding by Vendor under the Order must be commenced no later than one (1) year after the breach or other event giving rise to Vendor’s claim occurs, or Vendor becomes aware of its existence of such claim, whichever occurs first.
BATTLE OF THE FORMS NOT APPLICABLE.
The parties have agreed, and it is their intent, that the battle of the forms described in Section 2-207 of the Uniform Commercial Code shall not apply to these Terms or to any invoice or acceptance form of Vendor relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistence between any invoice or acceptance form sent by Vendor to SoA and these Terms, these Terms shall control.