Terms and Conditions for Purchase of Products and/or Services

The following terms and conditions apply to the purchase/delivery relationship between the seller/work contractor (“Supplier” or “Contractor”) and BAUER-Pileco.inc (“Bauer” and, together with the Supplier or Contractor, the “Parties”). As used herein, “Contract” means a contract between Bauer (and/or its affiliates), on the one hand, and the Supplier or Contractor, on the other hand, pursuant to which the Supplier or Contractor provides products or services, as applicable, to Bauer and/or its affiliates; and “Products” and “Services” means the products and/or services, as applicable that the Supplier/Contractor provides to Bauer and/or its affiliates pursuant to a particular Contract.

Conflicting General Terms of Business

The general terms and conditions of business of the Supplier or Contractor shall become an integral part of a Contract without the written approval of Bauer only if such terms and conditions do not conflict with these Terms and Conditions for Purchase of Products and/or Services (“Purchase T&Cs”) or the terms and conditions set forth in such Contract, and no subsequent course of conduct between the Parties shall affect the foregoing. Conflicting general terms and conditions of business shall not affect the validity of the Contract. In the event of any conflicting terms and conditions, the foregoing rules of interpretation shall apply, and, following that, statutory rules of interpretation (to the extent that they are not inconsistent with the foregoing) shall apply.

Offer / Purchase Orders / Order Documents

The Contractor shall prepare offers free of charge. Offers shall be submitted by the date named in the inquiry. The Contractor must exactly adhere to the specification and wording of the inquiry made by Bauer. The Contractor is obliged to expressly point out any deviations.

 

Purchase orders (“Orders”) must be in writing and shall be confirmed in writing by the Contractor without delay. Verbal purchase orders, amendments or supplements to purchase orders are binding only if they are confirmed by Bauer Procurement in writing. If the Contractor does not accept a purchase order within 7 calendar days, Bauer is entitled to revoke its offer prior to receipt of the Contractor’s declaration of acceptance (unless a different period is agreed upon by the parties in writing).

 

Bauer reserves the rights of title and copyrights to photocopies, drawings, calculations, raw material and product specifications and other documents; they may not be made accessible to third parties without the prior written approval of Bauer and shall be used exclusively for performance of the contract between the Contractor and Bauer.

 

Performance specifications, drawings, declarations of weight, measurements and consumption, raw material and production specifications of Bauer are binding and describe the agreed nature of the goods.

 

Bauer shall not be obligated to purchase or pay for any products and/or services which have not been expressly included in an Order.

Contract Implementation / Default / Contractual Penalty

  1. The prices set forth in the applicable purchase order are fixed prices. They include delivery to the delivery address and packaging, unless otherwise agreed in writing. If Supplier delivers the Products in a more expensive way than previously agreed to by Bauer, any increased transportation costs shall be paid for by Supplier.
  2. Drawings, declarations of weight, measurements, consumption and particulars on capacity by Bauer are binding and describe the agreed nature of the goods.
  3. The Contractor shall send Bauer an invoice at least in duplicate separately by post or electronic copy after the dispatch/delivery of the goods. The Contractor must quote the purchase order number, delivery note number and date on each invoice. Invoices which do not meet these requirements shall be returned. Irrespective of its other rights, Bauer shall not be required to make payment to the Contractor until an invoice is submitted which meets these requirements.
  4. The Contractor grants Bauer the following terms for settlement of the invoice, unless otherwise agreed: Net without any deduction within 60 workdays. Bauer shall make payment on such terms unless, (i) in Bauer’s reasonable opinion, the Products are defective and/or the Services are unsatisfactorily performed, or fail to conform to the warranties provided hereunder or in the Contract, or (ii) Bauer disputes the correctness of the invoice submitted, in which case the Parties shall attempt in good faith to settle their dispute at the earliest. Payments made by Bauer shall not constitute acceptance of the Products and/or Services, or be construed as a waiver of any rights Bauer may have hereunder or in the Contract for defective or nonconforming Products and/or unsatisfactorily performed Services. Bauer may set off any amount owed by Bauer to Supplier against any amount owed by Supplier to Bauer.
  5. Supplier acknowledges that time is of the essence under all Contracts, and all the agreed delivery dates are binding. If the Contractor does not timely make delivery of the goods or services (except for such failures to timely perform which are expressly set forth herein or in the applicable Contract), it shall be in immediate default of the Contract and no additional period to perform and/or opportunity to cure shall be required to be provided to the Contractor. Unless otherwise agreed to by the Parties, delivery is due as follows: where a fixed calendar date for delivery is stated, upon the expiry of that day; where a specific calendar week is stated, upon the expiry of the last workday of that week; where a calendar month is stated, upon the expiry of the last workday of that month. If the Products are not delivered in accordance with the applicable delivery schedule set out in an Order, then, without limiting any other remedy, Bauer shall be entitled to deduct from the applicable price set forth in that Order by way of liquidated damages for delay, one half percent (1/2%) of said price for each complete day of delay, up to a maximum of twenty percent (20%) of the total price for that Order, as an aggregate limit to liquidated damages applicable to that Order. In the event of Force Majeure such as an Act of God the liquidated damages will be postponed, but the Supplier must take reasonable steps and use precautions to limit the effects of such Acts of God.
  6. Neither Supplier, nor Bauer, shall be liable for delay or non-performance of its obligations hereunder (or part thereof) if the cause of delay or non-performance is an event which is unforeseeable, beyond the control of the Party affected, including without limitation acts of God, acts of civil or military authority, governmental orders, war, fire, explosion, labor unrest (except if limited to the Party affected) or epidemics (“Force Majeure Event”). The Party affected shall promptly notify the other Party and promptly make commercially reasonable efforts to mitigate the effects of such Force Majeure Event.

Termination and Changes of Orders

  1. Bauer may cancel an Order, in whole or in part, for convenience or for cause, prior to or after its acceptance by Supplier. The cancellation notice shall specify the extent to which the performance of work related to the Order is terminated, and the time at which such termination becomes effective. Upon receipt of said notice, Supplier shall stop the performance of said work to the extent specified in the notice of termination. Bauer may cancel an Order for cause without penalty in the event of Supplier’s default or failure to (i) comply with the terms and conditions hereof (including without limitation the obligation to accept or reject the Order submitted within the time period set forth in Article 2.2), (ii) comply with the specific instructions of an Order accepted by Supplier (including without limitation failure to timely deliver the Products or perform the Services irrespective of whether Supplier provided notice to Bauer regarding said non-compliance and irrespective of whether Bauer acknowledged receipt of any such notice), (iii) provide reasonable assurance of future performance, or (iv) Supplier becomes bankrupt or insolvent, or if Supplier’s business is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of Supplier or otherwise, or undergoes any proceeding analogous to the foregoing. Either Party may cancel an Order if a Force Majeure Event lasts for more than fifteen (15) consecutive days.
  2. With respect to Products, if an Order is cancelled by Bauer: (a) for cause, irrespective of the type of Products (e.g. standard/non-customized or non-standard/customized), Bauer may require Supplier to (i) transfer title to, and deliver to Bauer, in the manner, time, and extent directed by Bauer, any completed or partially completed Products, materials, parts, tools, designs, fixtures, plans, drawings and information, and transfer contract rights that Supplier acquired for the performance of the terminated part of the Order, and (ii) (if applicable) both disclose and grant to Bauer a royalty-free, assignable and non-exclusive license to use and permit others to use Supplier’s designs, processes, drawings, and technical data to permit completion by Bauer of the Order; and if (b) for convenience, the following shall apply: (i) with respect to standard/non-customized Products (not manufactured according to Bauer’s proprietary specifications), no payment shall be owed by Bauer if said cancellation occurs prior to shipment/delivery of the Products. However, if said cancellation occurs after shipment/delivery of the Products, Supplier shall be paid a reasonable mutually agreed termination charge reflecting the non-recoverable packing and shipment/delivery costs incurred by Supplier, if any; and (ii) with respect to non-standard/customized Products (manufactured according to Bauer’s proprietary specifications), Supplier shall be paid a reasonable mutually agreed termination charge reflecting the work actually performed prior to cancellation, not to exceed the applicable price for the terminated part of the Order reduced by the price of work not completed (and as the case may be, by the amounts already paid in respect thereof).
  3. With regard to Services, Supplier shall terminate all work and commitments made under or pursuant to the Order as quickly and completely as possible and shall provide written proof to Bauer that such termination has been accomplished as indicated in the termination notice. Bauer shall pay Supplier that percentage of the price set forth in the Order corresponding to the percentage of the work performed prior to the notice of termination, less all amounts previously paid, plus actual direct costs reasonably necessitated by the termination. Supplier shall not be paid for any work done after receipt of notice of termination, or for any costs incurred by Supplier’s suppliers or subcontractors which Supplier could reasonably have avoided.
  4. Bauer shall have the right to make changes in an Order, prior to or after its acceptance by Supplier. If said change(s) trigger(s) increased or decreased costs or a longer or shorter period for delivery of Products or provision of Services, or impacts any of the other conditions applicable to the Order as originally submitted, Supplier shall so notify Bauer within five (5) working days from Order change(s) receipt (unless a different period is agreed on the Order change). Failure by Supplier to do so shall constitute an unconditional waiver by Supplier to make a claim for adjustment, and be deemed acceptance to perform the Order change under the original applicable conditions (including price) as modified by the change in the Order provided by Bauer. If Supplier so notifies Bauer, the Parties shall agree on the applicable changes in the original conditions, based upon the supporting documentation submitted by Supplier, and Bauer shall elect whether to proceed or not.
  5. Supplier shall not have the right at any time to make changes in any Order, unless Bauer expressly agrees thereto in writing.

Delivery / Accompanying Documents / Packaging

  1. The Contractor must comply with the dispatch instructions with the utmost meticulousness and ensure proper and careful packaging and the safe arrival of the Products, in good condition, at the destination specified by Bauer. The Contractor shall provide each delivery with a packaging slip which shows a) the purchase order number of Bauer b) the date of the purchase order c) the exact content of the delivery/consignment. The Contractor or third parties entrusted with this task by it shall make deliveries only during the opening hours of Bauer on the scheduled delivery date, unless otherwise agreed to by Bauer, at the place indicated in the Order. Partial deliveries shall not be accepted without Bauer’s prior authorization.
  2. Bauer reserves the right to refuse acceptance of any shipment that is received visibly damaged, or the contents of the shipment do not match the purchase order contents. Such rejected shipments shall be returned to the shipper at the shipper’s expense, at no cost to Bauer.
  3. Regarding all shipments delivered to 100 N FM 3083 E Conroe, Texas 77303, delivery drivers will be entering a Foreign Trade Zone Facility and must utilize the call button, and indicate the purchase order number associated with the delivery. Driver must present **valid identification and report directly to the appropriate building, and a State Driver’s License or United States Permanent Resident Card, Passport or TWIC Card.
  4. Delivery Drivers must present one of the following:
    a) Forwarding Company Delivery Order
    b) US Customs and Border Protection Delivery Ticket (CBP 6043)
    c) Suppliers Packing List

Passing of the Risk

The Contractor bears the risk until the delivery is handed over at the place of use, unless delivery ex works is agreed in an individual case or if Bauer should carry out the dispatch for its own account.

Liability

  1. SUPPLIER SHALL DEFEND, INDEMNIFY AND HOLD BAUER, ITS AFFILIATES AND ITS AND THEIR EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AGENTS AND INVITEES HARMLESS AGAINST ANY CLAIMS, DEMANDS, CAUSES OF ACTION, JUDGMENTS, PROCEEDINGS, AWARDS, DAMAGES, LOSSES, FINES, PENALTIES COSTS, EXPENSES AND LIABILITIES, INCLUDING LITIGATION COSTS AND REASONABLE ATTORNEY’S FEES (COLLECTIVELY, “CLAIMS”) ARISING OUT OF DEATH, ILLNESS OR INJURY, LOSS, DISAPPEARANCE OR DAMAGE TO PROPERTY, OR OTHER LOSSES OR DAMAGES AS A RESULT OF, OR IN CONNECTION WITH (I) PERFORMANCE OF THE CONTRACT OR THESE PURCHASE T&CS; (II) THE NEGLIGENT ACTS OR OMISSIONS OF SUPPLIER OR ANY OF ITS EMPLOYEES, AGENTS, OR CONTRACTORS UNDER OR RELATING TO THE CONTRACT OR THESE PURCHASE T&CS; (III) SUPPLIER’S BREACH OF THE CONTRACT OR THESE PURCHASE T&CS, INCLUDING ANY OBLIGATIONS THEREUNDER OR HEREUNDER; (IV) ANY DEFECTIVE OR ALLEGEDLY DEFECTIVE PRODUCT; AND (V) ANY CLAIMS RELATING MADE BY OR ON THE BEHALF OF OR RELATING TO ANY SUBCONTRACTORS OF SUPPLIER.
  2. SUPPLIER SHALL DEFEND, INDEMNIFY AND HOLD BAUER, ITS AFFILIATES AND ITS AND THEIR CLIENTS, EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, AGENTS AND INVITEES HARMLESS AGAINST ANY CLAIMS ARISING OUT OF ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHT, OR ANY LITIGATION BASED THEREON, WITH RESPECT TO ANY PRODUCTS (OR PART THEREOF), OR USE THEREOF, EXCEPT TO THE EXTENT THAT SUCH INFRINGEMENT RESULTS SOLELY FROM THE MANUFACTURE OF THE PRODUCTS PURSUANT TO DETAILED DESIGNS FURNISHED BY BAUER.
  3. IF ANY PRODUCTS (OR PART THEREOF), OR USE THEREOF, BECOME(S), OR IN BAUER’S OPINION, IS/ARE LIKELY TO BECOME, THE SUBJECT OF AN INFRINGEMENT CLAIM, SUPPLIER SHALL (I) PROCURE FOR BAUER THE RIGHT TO CONTINUE THE USE THEREOF, OR (II) REPLACE OR MODIFY THE SAME SO THAT IT BECOMES NON-INFRINGING (PROVIDED THE SAME LEVEL OF FUNCTIONALITY IS MAINTAINED). SUPPLIER SHALL ALSO BE LIABLE FOR ANY DAMAGES ASSESSED AGAINST BAUER, ITS AFFILIATES OR ITS OR THEIR CLIENTS ARISING OUT OF THE USE OF THE SAME PRIOR TO THE DATE UPON WHICH SUPPLIER PERFORMED ANY OF THE FOREGOING REMEDIAL ACTIONS, AS SET FORTH ABOVE.
  4. SUBJECT TO SECTION 7.4 BELOW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY PUNITIVE, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES SUSTAINED BY THE OTHER OR ITS AFFILIATE IN CONNECTION WITH THE PERFORMANCE OF THESE PURCHASE T&CS OR ANY ORDER, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTIONS, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF USE OF ASSETS AND LOSS OF CONTRACTS, REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE, AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
  5. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 7.3 DO NOT APPLY TO LIABILITY ARISING FROM: (A) SUPPLIER’S DUTY TO INDEMNIFY BAUER AND ITS AFFILIATES FOR THIRD-PARTY CLAIMS UNDER THESE PURCHASE T&CS; OR (B) FRAUD.
    SUPPLIER’S INDEMNITY OBLIGATIONS SET FORTH HEREIN SHALL BE SUPPORTED BY APPROPRIATE INSURANCE POLICIES, ACCEPTABLE TO BAUER.

Orders for Performance / Provision of Materials, Drawings, Samples

  1. Insofar as Bauer provides materials to the Contractor for the execution of orders the materials provided remain the property of Bauer. The Contractor is obliged to clearly mark the material provided as such and to store it separately, especially so that no mingling/combination occurs. The Contractor undertakes to use the material entrusted to it only for the production planned contemplated by the Contract. In the event that a loss of ownership occurs for Bauer through processing, the Contractor hereby assigns to Bauer its rights of ownership arising therefrom. Moreover, the Contractor is obliged to immediately notify Bauer in writing of any seizure threatened or already executed or any other impairment of the rights of Bauer (stating the data required to protect the rights of Bauer). In case of non-compliance or any act in breach of the points above, Bauer shall be entitled to damages from the Contractor. In addition, the Contractor is obligated to insure the material provided by Bauer at its own expense against all customary risks. The Contractor hereby undertakes to assign to Bauer all the insurance claims arising if the insured event should occur.
  2. Insofar as manufacturing means such as models, samples, tools and similar have been manufactured in whole or in part at the expense of Bauer, these shall pass into the ownership of Bauer upon production. Drawings, models, samples and similar items sent in to the Contractor remain the property of Bauer. They as well as goods produced on the basis of these may not be provided to third parties or used for advertising purposes without the prior written approval of Bauer. They shall be returned to Bauer after the delivery of the order at the latest. The Contractor shall store them carefully, maintain them and renew them so that they can be used at any time. Bauer is entitled to demand the surrender thereof from the Contractor at any time. If the Contractor fails to comply with these obligations, Bauer shall be entitled to damages.

Covenant Against Assignment / Place of Performance / Place of Jurisdiction

  1. Without the prior written approval of Bauer, the Contractor is not permitted to transfer, assign or pledge the delivery commitment or the payment claim under the Contract between the Contractor and Bauer in part or in whole to third parties. Neither Party shall, without the prior written consent of the other Party, have the right to assign its rights or obligations under these Purchase T&Cs to another party, and any purported assignment without such consent shall be null and void.
  2. The place of performance for the delivery is the forwarding address stated in the order placed by Bauer.
  3. These Purchase T&Cs shall be governed by, and construed in accordance with, the laws of the State of Texas (USA) for agreements entered into in the United States.
  4. Any dispute that cannot be settled amicably shall be resolved by arbitration, which shall be the exclusive method of formal dispute resolution under these Purchase T&Cs. Such arbitration shall be held in the English or German language, as agreed upon by the Parties, at a mutually agreeable location in accordance with the (i) commercial arbitration rules of the American Arbitration Association for contracts entered into in the United States, and rules of conciliation and arbitration of the International Chamber of Commerce for all other contracts entered into outside the United States. Nothing herein shall, however, prohibit a Party from seeking temporary or preliminary injunctive relief in a court of competent jurisdiction. The Parties expressly consent to arbitration and waive any right of appeal to any court from any arbitral award (which shall be final and binding upon the Parties).
  5. Notices that are to be delivered to the Parties pursuant to the terms and conditions hereof shall be sent by registered mail return receipt requested, fax, or in person.

Partial Invalidity

Insofar as these Purchase T&Cs should be invalid in whole or in part, this shall not affect the remaining terms of the Contract. In such a case, the remaining portion of the Purchase T&Cs which are not invalid shall apply and, following that, statutory provisions shall apply.

Taxes

  1. Except as otherwise agreed by the Parties in writing, the prices (rates of compensation) provided under these Purchase T&Cs shall include all applicable taxes, duties, and levies including, without limitation, those described in Articles 11.2, 11.3, 11.4, and 11.6, paid, payable, levied or assessed on Supplier or any of its employees, agents, subcontractors and similar by the relevant government, arising directly or indirectly for the performance of the Services and/or sale of Products by Supplier under these Purchase T&Cs.
  2. Supplier shall assume full and exclusive liability for the payment of all taxes (and associated penalties and interest) including, by way of illustration and not limitation, corporate tax, income tax, branch profit tax, capital gains tax, or franchise tax payable, levied, imposed, or assessed upon the revenue, profits, or assumed profits of Supplier arising directly or indirectly from the performance of these Purchase T&Cs.
  3. Supplier shall assume full and exclusive liability for the payment of all taxes (and associated penalties and interest), including, by way of illustration and not limitation, personal income tax, employment compensation insurance, old age benefits, welfare funds, pensions and annuities, national insurance contributions, social security benefits and disability insurance, and similar charges payable, levied or imposed on any of its employees, subcontractors or agents and arising directly or indirectly from the performance of these Purchase T&Cs.
  4. Supplier shall assume full and exclusive liability for the payment of all taxes (and associated penalties and interest), including, by way of illustration and not limitation, sales and use tax, value-added tax, customs and import duties and levies and similar charges payable, levied or imposed on the procurement of goods by Supplier or any of its employees, subcontractors or agents and arising directly or indirectly from the performance of these Purchase T&Cs.
  5. The prices set forth in the Contract and/or the applicable Orders are exclusive of Value Added Tax and/or Sales Tax. Notwithstanding the provisions of Article 11.4, if applicable, Value Added Tax and/or Sales Tax will be added to Supplier’s invoices and such invoices will be presented in accordance with applicable regulations with respect to Value Added Tax and/or Sales Tax.
  6. Bauer may, without liability to Supplier, withhold any taxes or other government charges or levies from any payments which would otherwise be made by Bauer to Supplier to the extent that such withholding may be required by the existing or future legislation, orders, rules or directions of any competent taxing authority. Bauer shall provide a receipt in respect of any tax withheld. Where the requirements for any withholding are avoided by Supplier holding an appropriate valid exemption certificate it is the duty of Supplier to: (a) inform Bauer on a timely basis that such a certificate is held and to inform Bauer of any change to or cancellation of the certificate and; (b) provide copies of the certificate or any other proper documentation evidencing the exemption or any further information that may be required to avoid such withholding. Failure on the part of Bauer to withhold or deduct any taxes from Supplier does not remove the liability for those taxes from being declared and paid by Supplier.
  7. SUPPLIER SHALL DEFEND, INDEMNIFY, AND HOLD BAUER HARMLESS FROM LIABILITY TO ANY COMPETENT AUTHORITY RESULTING FROM SUPPLIER’S FAILURE TO (I) MAKE TIMELY PAYMENT OF OR PAY ANY OF THE CHARGES SPECIFIED IN ARTICLES 11.2, 11.3, 11.4 OR 11.6 ABOVE, INCLUDING INTEREST, PENALTIES AND ANY OTHER LIABILITY ARISING FROM SUCH FAILURE, OR (II) COMPLY WITH THE REPORTING, FILING OR OTHER PROCEDURAL REQUIREMENTS WITH RESPECT TO THEIR PAYMENT.
  8. In the event that Bauer receives a direct request from any governmental authority requesting information regarding Supplier, and upon written request by Bauer, Supplier shall provide evidence to confirm Supplier’s compliance with governmental tax reporting and payment obligations.

Non-Exclusive Relationship: No Commitment to Buy

  1. The relationship between the Parties hereunder shall be non-exclusive. Provided however, if the Products and/or Services are customized for Bauer in accordance with Bauer’s proprietary specifications and requirements, Supplier shall not sell to others the customized Products and/or provide Services, except as expressly agreed in writing by Bauer prior to such sale.
  2. Bauer makes no commitment of any kind with respect to a business volume or the like, notwithstanding anything herein to the contrary.

Warranties: Quality & Inspection

  1. Supplier warrants that the Products shall (i) for a period of twelve (12) months from the date of delivery to Bauer conform to the applicable specifications, or otherwise, if for a lesser period, conform to the applicable manufacturer’s warranty which Supplier shall transfer to Bauer, (ii) be merchantable, free from defects in workmanship, materials, manufacture and design, fit for the purposes intended and new (unless otherwise agreed by Bauer), (iii) be certified (if applicable), and comply with all applicable laws (including without limitation environmental and safety laws, rules and regulations) and as applicable, and (iv) Supplier shall have good and marketable title to all Products delivered to Bauer, free from and clear of any liens or encumbrances.
  2. Supplier warrants that the Services shall be performed (i) by skilled, qualified and experienced personnel, (ii) in a timely, workmanlike, safe and diligent manner, (iii) and in accordance with the customary industry standards.
  3. The foregoing warranties shall apply to the benefit of Bauer, its Affiliate(s), or its or their clients, and shall not be affected by delivery to, or inspection, acceptance or payment by Bauer. If any Products delivered are found not to be as warranted, Bauer may return the same to Supplier, at Supplier’s expense and risk, for correction, replacement or credit, as Bauer may direct. Any Products repaired or replaced shall be warranted to the same extent as Products initially furnished. If any Service(s) is not performed in accordance with the foregoing, Supplier shall re-perform the same and take all such actions as are required to rectify the matter, at Supplier’s expense and risk. The warranties set forth in this Article 13 do not apply in lieu of, but in addition to, all other warranties, terms, representations or guarantees (whether express or implied), and the remedies set forth in this Article 13 do not apply in lieu of, but in addition to, all other remedies available at law, in contract, in equity or otherwise.
  4. Supplier agrees that before starting the performance hereof, it shall, as applicable, have implemented and documented a Quality Assurance program meeting the requirements of ISO 9001 or of an internationally recognized standard of the same level.
  5. Supplier shall make a full inspection of the Products specified in an Order prior to shipment; however the same shall be subject to Bauer’s inspection and approval prior to acceptance and/or payment.
  6. Regardless of where/when title to the Products is transferred, the risk of loss of, or damage to, the Products shall pass to Bauer upon delivery.
  7. If after delivery of the Products to Bauer, the Products are sent back to Supplier’s facility for Supplier to assess the need and cost of repairs not covered under the warranty (if any), the risk of loss of, or damage to, such Products while at Supplier’s facility (excluding the transport phase to and from said facility, unless otherwise agreed by the Parties) shall be borne by Supplier.
  8. For every order line received from Supplier, identified at Bauer site to be non-conforming and agreed with Supplier that such nonconformity was the fault of Supplier, Supplier shall be subject to pay $250 per incident of nonconforming product to cover the cost incurred by Bauer for such nonconforming product.
  9. Bauer shall notify Supplier of any defects in the Products it receives from Supplier within two weeks after discovery thereof.
  10. The statutory periods for the limitation of claims based on defects apply. The elimination of defects or the delivery of replacements including any dismantling or reassembly shall be carried out free of charge for Bauer. All the costs incurred in this connection for Bauer shall be borne by the Contractor. This is without prejudice to any further claims for damages.
  11. The Contractor is liable based on legal provisions, in particular for intent and any kind of negligence. Liability cannot be limited in terms of amount.

Liens

Supplier agrees that it shall not allow any liens to attach to the Products and/or any property of Bauer, and it shall furnish, upon request, receipts and releases showing that all related costs and expenses have been paid. SUPPLIER SHALL INDEMNIFY AND HOLD BAUER HARMLESS FROM ANY AND ALL SUCH LIENS AND/OR CLAIMS.

Replacement Parts / Parts Subject to Wear for BAUER Customers

Supplier shall guarantee not to sell any replacement parts or parts subject to wear to Bauer customers without the prior written consent of Bauer.

Business Conduct

  1. Supplier warrants, represents and agrees that:
    a) in obtaining these Purchase T&Cs it has complied, and in performing these Purchase T&Cs it shall comply, with all applicable laws, statutes, regulations and orders relating to anti-bribery, anti-corruption, competition and trade control (“Relevant Requirements”);
    b) it shall not provide gifts or entertainment to Bauer’s employees: (i) above a nominal value of two hundred US Dollars ($200) or the equivalent in local currency or in any manner that is deemed excessive or extravagant; or (ii) in the case of an event (including sporting or other entertainment events), where Supplier does not attend;
    c) it shall ensure that any payment or advantage made or given to anyone on behalf, or for the benefit, of Bauer is properly and accurately recorded in Supplier’s books and records, including the amount or value, purpose and receipt, which records shall be maintained with supporting documentation and provided to Bauer upon reasonable request.
  2. Where applicable, Supplier shall ensure that there is a written contract between Supplier and any of its subcontractors supplying services or goods in connection with the Contract to which these Purchase T&Cs relate, which imposes terms equivalent to those imposed on Supplier in this Article 16 (“Relevant Terms”). Supplier shall be responsible for the observance and performance of the Relevant Terms, and shall be directly liable to Bauer for any breach of any of the Relevant Terms.
  3. TO THE EXTENT PERMITTED BY LAW, SUPPLIER SHALL INDEMNIFY BAUER AGAINST ANY ACTIONS, CLAIMS, PROCEEDINGS, DEMANDS, LOSSES, LIABILITIES, DAMAGES, COSTS (INCLUDING LEGAL FEES), FINES, PENALTIES AND/OR EXPENSES SUFFERED OR INCURRED BY BAUER AS A RESULT OF ANY BREACH OF THIS ARTICLE 16 BY SUPPLIER OR ANY BREACH OF THE RELEVANT TERMS.

Independent Contractor

The purchase/delivery relationship contemplated herein between Supplier and Bauer shall not be construed as creating a joint venture, partnership or the like. Neither Party shall act or be deemed to act on behalf of the other Party (or its affiliates), or have the right to bind the other Party (or its affiliates). Each Party shall remain an independent entity, and act as an independent contractor.