The following terms and conditions ("Terms") shall govern the purchase or lease of all hardware, software, support services, goods and professional services between Subaru of America, Inc. ("SoA") and its suppliers (each, a "Supplier"), unless and until such applicable Supplier 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 all Hardware, Software, goods, materials, and other tangible items produced and/or delivered by Supplier to SoA under the Order.
B. "HARDWARE" means the equipment listed on the Order and to be purchased or leased by SoA through Supplier.
C. "INTELLECTUAL PROPERTY" means all copyrights, trade secrets, trademarks, trademark rights, service marks, trade names, industrial designs, discoveries, inventions (whether patented or not), developments, or other intellectual proprietary rights registered or recognized by the laws of any country or state.
D. "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 Supplier.
E. "PROPRIETARY MATERIALS" means all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, manuals, and business plans), ideas, inventions (whether patentable or not), know-how, processes, compilations of information, trademarks, and other intellectual property.
F. "SERVICES" means the services and tasks which Supplier will provide or render for or on behalf of SoA under the Order.
G. "SOFTWARE" means the software listed on the Order and to be purchased by SoA through Supplier, which may include third party software.
OFFER; ACCEPTANCE; EXCLUSIVE TERMS.
Each Order incorporates by reference and is governed by these Terms. By accepting the Order and/or performing thereunder, Supplier will be deemed to have accepted these Terms. Each Order is limited to and conditional upon Supplier’s acceptance of these Terms exclusively. These Terms are available at vendors.subaru.com/technology ("Site"). SoA may unilaterally modify these Terms at any time by posting a revised version on the Site, and it is Supplier’s responsibility to check the Site regularly for modifications. Supplier’s acceptance of the Order after the effective date of the revised version constitutes Supplier’s acceptance thereof. These Terms prevail over any of Supplier’s general terms and conditions of sale, lease, or service, regardless whether or when Supplier 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 Goods and/or 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 or lease requirements hereunder and shall be entitled, in its sole discretion, to purchase and/or lease Goods and/or Services from any third party.
HARDWARE, SOFTWARE, AND SERVICES.
A. Order; Acceptance. Supplier shall provide the Goods and/or perform Services as designated in the Order. Except as otherwise stated in the Order, acceptance by SoA of the Goods or Services shall occur when such Goods has been satisfactorily delivered, inspected, and installed, such Services have been fully performed, and the Goods and Services meet all applicable performance criteria set forth in the Order. SoA shall inspect and notify Supplier in writing of acceptance or rejection within a reasonable time from the date the Goods and Services have been received. SoA’s payment of any invoice shall not be deemed to be acceptance of the Goods or Services. SoA’s acceptance of the Goods or Services shall not be construed as evidence that such Goods or Services conform in all respects with the requirements for such items set forth in the Order, or as a waiver of Supplier’s warranty obligations as contained herein. Supplier shall keep the Goods and Services free and clear of any and all liens, encumbrances, and claims.
B. Shipping; Risk of Loss; Title. Supplier shall coordinate shipping and delivery of the Goods to SoA. Except as otherwise stated in the Order, Supplier must ship the Goods deliver duty paid (DDP)to the address specified in the Order ("Delivery Point") during SoA’s normal business hours or as otherwise instructed by SoA. The Order number must appear on all shipping documents, labels, invoices, correspondence, and any other documents pertaining to the Order. 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.
C. Packing. Supplier 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 Supplier at Supplier’s expense.
D. Functionality. If Supplier recommends that SoA run Software on specified Goods or equipment, Supplier shall be responsible if the Software does not function on such Goods or equipment.
E. Errors. SoA shall notify Supplier promptly of any material failure of the Goods ("Error") to conform to any operator or user manuals or training, technical or other materials provided by Supplier ("Documentation"). Supplier will exercise its best efforts to expeditiously and efficiently provide information and support services reasonably requested by SoA.
F. Records. Supplier shall maintain complete and accurate records relating to the provision of the Services, including records of the time spent and materials used by Supplier in providing the Services, in such form as SoA shall approve. During the term of the Order and for a period of 1 year thereafter, upon SoA’s written request, Supplier shall allow SoA to inspect and make copies of such records and interview Supplier personnel in connection with the provision of the Services.
G. Subcontractors. With SoA’s prior written consent, Supplier may engage subcontractors to perform the Services or other obligations to be performed by Supplier under the Order, provided that Supplier will remain fully responsible for the work and activities of such subcontractors. Supplier represents and warrants that each subcontractor shall be subject to all of Supplier’s obligations, responsibilities and warranties under the Agreement, and that Supplier 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 Supplier.
H. Time and Quantity of the Essence. Supplier acknowledges that time is of the essence with respect to Supplier’s obligations hereunder and the timely delivery of the Goods and/or Services, and Supplier shall strictly comply with all time and quantity provisions of the Order. Supplier shall promptly notify SoA in writing of any and all events which could affect the fulfillment by Supplier 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 Supplier. SoA is not obligated to accept early, late, partial or excess deliveries.
COMPLIANCE WITH THE LAW; SUPPLIER CONDUCT.
Supplier shall comply with all applicable laws, regulations and ordinances. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Supplier shall ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Supplier, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services. While at a Subaru facility or location, Supplier and its employees, agents, subcontractors, and affiliates 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 Supplier has been notified or of which Supplier should reasonably be aware. Supplier 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.
Supplier 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. Supplier 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, Supplier 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.
PROPIETARY MATERIALS.
Supplier agrees that all Proprietary Materials created in connection with this Agreement 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, Supplier or any of its personnel owns any Intellectual Property rights in such Proprietary Materials, Supplier hereby irrevocably assigns and transfers, or shall have irrevocably assigned and transferred, to SoA all rights, title and interest in such Proprietary Materials. Supplier agrees to cooperate with SoA in the protection of, and securing SoA’s rights in, Proprietary Materials, including the execution of any documents necessary to secure such rights, whether during or after the term of this business relationship with SoA. SoA will have and retain all rights, including Intellectual Property rights, in SoA’s Proprietary Materials. Supplier acknowledges that it does not own SoA’s Proprietary Materials and will acquire no right, title, or interest in SoA’s Proprietary Materials furnished to or used by Supplier. In providing the Goods and/or Services, Supplier may use third party materials, provided that Supplier shall disclose in writing to SoA any third party materials that are incorporated or embedded into any of the Proprietary Materials. Supplier warrants that: (a) it has all rights needed to use the third party materials for purposes of providing the Goods and/or Services under this Agreement; and (b) SoA has a perpetual, worldwide, royalty-free license to use such third party materials as part of such Proprietary Materials.
PRICE.
The price of the Goods and/or 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 Supplier, its employees, agents, subcontractors and affiliates pursuant to the Order shall be at the Supplier’s expense.
PAYMENT TERMS.
Supplier shall invoice SoA for the Goods and/or Services on or any time after the completion of delivery of such Goods and performance of such Services. Except as otherwise stated in the Order, (a) SoA shall pay all properly invoiced, non-disputed amounts due to Supplier based on a Net 45 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 Supplier any amounts for which SoA determines in good faith Supplier or its affiliates is liable to SoA under any other Order with Supplier or its affiliates. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier 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 Supplier 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 Supplier 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 the SoA’s request, Supplier shall promptly return all documents and other materials received from SoA. SoA shall be entitled to injunctive relief for any violation of this Section 11. This Section 11 does not apply to information that is: (a) in the public domain; (b) known to Supplier at the time of disclosure; (c) rightfully obtained by Supplier on a non-confidential basis from a third party; or (d) developed by Supplier without reference to or use of any of SoA’s confidential or proprietary information.
WARRANTIES.
The 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. Unless a longer period is specified in the Order, Supplier warrants that the Goods will be fit for their intended purpose and operate in substantial conformance with its Documentation for a period of 12 months after the Goods, as the case may be, is accepted by SoA in accordance with the Order. Supplier agrees to correct any Error of which it receives notice during the warranty period. SoA shall provide Supplier with written notice that an Error exists, and Supplier shall have a reasonable period of time, based on the severity of the Error, at Supplier’s sole cost and expense, to correct the Goods, as applicable.
C. Supplier warrants that (i) the Goods and the Services requiring programming or software products do not contain any disabling devices that would allow Supplier to terminate operation of the Goods and (ii) the Goods and Service are and will remain free of any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software.
D. Supplier further warrants that the Goods, Services and all other Proprietary Materials provided to SoA under this Agreement are either Supplier’s original work, are public domain materials or are owned by a third party from whom Supplier has acquired all necessary permissions to grant the rights under this Agreement. Furthermore, Supplier warrants that neither its provision of the Goods, Services, other Proprietary Materials, nor SoA’s receiving or use of the same as provided under this Agreement, infringe the Intellectual Property rights of any third party.
E. Supplier represents and warrants that (i) the Services will be performed in a prompt, professional and workmanlike manner, in accordance with industry standards, and (b) Supplier has the expertise and resources necessary to undertake and complete the Services in accordance with the specifications and timeframes set forth in the Order ("Services Warranty"). Promptly after SoA notifies Supplier of any defect or non-conformity, Supplier shall, at SoA’s option, either (i) re-perform the Services without additional fees or charges to SoA, or (ii) refund the Service portion of the Price for any Services that do not conform to the Services Warranty.
F. Supplier represents and warrants that Supplier, and any Services supplied by Supplier, 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.
G. Supplier 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.
H. Supplier 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 Supplier 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) Supplier 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 Supplier of any defect or non-conformity, Supplier 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.
I. The warranties set forth in this Section 12 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 Goods and/or Services with the foregoing warranties.
GENERAL INDEMNIFICATION.
Supplier 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 Supplier 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 Supplier or its employees, agents, subcontractors, or affiliates; and
C. Claims by Supplier’s employees or subcontractors that they are entitled to any benefits normally associated with employment at SoA. In no event shall Supplier enter into any settlement without the SoA Indemnitee’s prior written consent.
LIABILITY LIMITATION.
SoA’s aggregate liability to Supplier 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 Goods and/or Services that gave rise to the claim during the twelve(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 one(1) full 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 Supplier lasts longer than five (5) days, SoA may terminate the Order without liability, and Supplier shall reimburse SoA for any termination costs.
INSURANCE.
At all times while this Agreement is in effect, Supplier 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 Supplier. 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, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by SoA prior to the termination. Following the termination or expiration of this Agreement: (a) Supplier shall promptly invoice SoA for any outstanding amount due and owing under the Agreement, and SoA shall pay all such amounts to Supplier 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) Supplier 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 . All notices to Supplier 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.
Supplier 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 SUPPLIER.
Any legal action or arbitration proceeding by Supplier under the Order must be commenced no later than one (1) year after the breach or other event giving rise to Supplier’s claim occurs, or Supplier 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 Supplier 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 Supplier to SoA and these Terms, these Terms shall control.