Purchase of Products
Onex, Inc. Purchase Order Terms And Conditions Rev1. Dated July 2, 2015
1. CONTRACT
The Purchase Order includes (a) the Purchase Order form itself (the “Form”) and any exhibits thereto; (b) any samples, drawings, specifications, plans, or other descriptions of any kind, formal or informal, provided by Onex to Vendor (the “Specifications”); (c) these Purchase Order Terms and Conditions (the “T&C”); and (d) any addenda to any of the foregoing documents embodied in a writing signed by a duly authorized representative of Onex. For the purposes of this Purchase Order, the term “Specifications” shall include any and all specifications published by the manufacturer at the time the product is ordered and shipped. In the event of any conflicts among these documents, the terms contained in the documents listed earlier in the preceding sentence shall control over terms of documents listed later therein, and Specifications prepared by Onex shall control over Specifications published by the manufacturer.
2. ACCEPTANCE
This Purchase Order shall become a legally enforceable contract upon the earlier of delivery of a signed acknowledgment, commencement of performance, or shipment of all or a portion of the Goods subject to this Contract by Vendor.
Onex’s obligation to purchase Goods hereunder is made expressly subject to the acceptance by Vendor of these terms and conditions and, in the event of a conflict between any terms or conditions proposed by Vendor and these terms and conditions, the parties agree that these terms and conditions shall control.
3. PARTIES
Throughout these Terms and Conditions, the term “Onex” shall refer to Onex, Inc., a Pennsylvania corporation, and Vendor shall refer to the Vendor as listed on the Form.
4. PRICE
(a) Prices are Complete. Vendor warrants that the prices set forth in this Purchase Order are complete and that no additional charge of any type will be added without Onex’s prior express written consent.
(b) Taxes. Except as provided in this Article 4(b), Vendor shall be responsible for payment of all applicable federal, state, and local taxes of any kind. However, if Vendor is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from Onex on behalf of any taxing jurisdiction, Vendor shall provide to Onex invoices which separately state and clearly indicate the amount of tax and Onex will remit any such tax to Vendor.
(c) Lowest Price. Vendor further represents and warrants that the prices set forth in this Purchase Order are the lowest prices charged for the Goods, or substantially similar goods, sold by Vendor to its other customers.
If, after execution of this Purchase Order but prior to payment by Vendor for Goods purchased hereunder, Vendor (a) sells, or offers to sell, Goods, or substantially similar products, to another customer at a lower price; (b) offers a reduction in price to any customer already purchasing Goods, or substantially similar products; or (c) sells, or offers to sell, goods, or substantially similar goods, on commercial terms that are, in Onex’s reasonable judgment, more favorable than those set forth in this Purchase Order, such lower price or more favorable terms shall be applicable to all purchases of Goods by Onex hereunder.
(d) Third-Party Offers at Lower Price. If, at any time after this Purchase Order has been executed but prior to payment by Onex for the Goods to Vendor, Onex receives a bona fide offer from a third party to furnish all or part of the Goods or substantially similar products, to Onex on similar commercial terms, but at a lower prices, Onex may notify and provide the necessary particulars of such offer to Vendor and Vendor shall, within five (5) days thereafter, advise Onex whether it will match such price for Goods or part of the Goods purchased hereunder. If Vendor does not agree to match such price, Onex may, in its sole discretion, elect to purchase the goods or part of the Goods from such third party, and any obligation of Onex to purchase those Goods or such portion of the Goods as is obtained from the third party from Vendor pursuant to the terms of this Purchase Order shall be extinguished.
5. DELIVERY
(a) Place of Tender, Risk of Loss, and Payment of Costs. The goods to be furnished pursuant to the Form (the “Goods”) shall be tendered by delivery to Onex at the place specified in the “Ship To:” section of the Form (the “Destination”) on the date listed in the “Expected Date:” section of the Form. The time set forth for delivery on the Form is of the essence. Vendor is responsible for maintaining proof of delivery and providing such proof when necessary to establish the fact of delivery. All costs of transportation, packing, crating, delivery, off-loading, insurance, installation, and storage prior to delivery of the Goods to the Destination shall be borne by the Vendor except to the extent such costs are expressly listed on the Form. The risk of loss of the Goods shall not pass to Onex until the Goods are delivered at the Destination, and Vendor shall be responsible for and handle all claims against any third-party carrier for shortages, damage, theft, or other losses.
(b) Blanket Purchase Orders. If the Purchase Order is identified as a “Blanket” Purchase Order, or if no date for delivery is provided, deliveries shall be made only in quantities and on dates and at times specified in releases or other instructions from Onex.
(c) Change of Delivery Schedules or other Terms and Suspension of Shipments. Vendor acknowledges that Onex is purchasing the Goods pursuant to this Purchase Order to incorporate into other products for third party customers and, as such, Onex may require changes to certain terms of this Purchase Order as the requirements of its customers change or for other reasons.
Onex may therefore, from time to time, change delivery schedules or direct temporary suspension of scheduled shipments. Onex shall be responsible for additional costs of expedited or other special transportation that Onex may require as a result of changes to its firm releases or delivery schedules only to the extent that (i) such changes were not caused by Vendor, and (ii) Onex is able to recover such costs from its own customers.
Onex may, at any time, in writing, make changes to the general scope of this Purchase Order, and Vendor shall continue performance of this Purchase Order as so changed. If any such change causes an increase or decrease in the cost of, or time required for, the performance of Vendor’s obligations under this Purchase Order, an equitable adjustment shall be made to the price or delivery schedule, or both, and this Agreement shall be modified in writing accordingly.
(d) Manner of Shipment. Unless otherwise provided in this Purchase Order, (i) all Goods shall be packed, marked, and shipped in accordance with the requirements of the applicable common carrier; (ii) packing slips identifying the purchase order number must accompany each shipment; (iii) Vendor shall mark each package with the Purchase Order number, and where multiple packages comprise a single shipment each package will be shown on the packing slips, bills of lading, and invoices; (iv) Vendor shall mark the Goods, packaging, and packing as instructed by Onex and in accordance with the standards of the Uniform Commercial Code as enacted by the Commonwealth of Pennsylvania and interpreted by the courts thereof; (v) Vendor shall pay any and all express and other charges for expedited shipping that may be necessary to enable Vendor to meet the delivery deadlines set forth in this Purchase Order; and (vi) immediately upon shipment of the Goods, Vendor shall provide written notice in electronic format, to Onex of such shipment which shall include the carrier transporting the Goods, the expected delivery date of the Goods, and any tracking number or other identifying information available for the Goods.
In the event that Onex is obligated to pay for shipping, Vendor shall bear the cost of any extra charges incurred because of Vendor’s failure to follow the shipping instructions of Onex or the applicable carrier, including without limitation those related to delivery schedules.
(e) Likelihood of Inability to Fulfill Purchase Order. In the event that facts become known to Vendor which give rise to a reasonable belief that Vendor may be unable to fulfill the terms of the Purchase Order, Vendor shall immediately provide notice of such facts to Onex. Such facts include, without limitation, potential material shortages, labor issues, insolvency of Vendor or any of its suppliers or affiliates, or any other facts of any kind that may tend to delay or interfere with Vendor’s performance hereunder.
6. INSPECTION
(a) Pre-Delivery Inspection. At Onex’s sole option, Vendor shall provide access for Onex to Vendor’s facilities at all reasonable times for such inspection, tests, and audits of the Goods prior to delivery as Onex may desire. Vendor shall, at no additional cost, provide all assistance and facilities reasonably necessary for Onex to perform the same. Neither the inspection, testing, nor auditing of any Goods, nor the failure by Onex to do so, shall constitute acceptance of the Goods or relieve Vendor from exclusive responsibility for furnishing goods in strict conformance with Onex’s specifications.
(b) Post-Delivery Inspection. Upon delivery of the Goods, Onex shall have a reasonable opportunity to inspect the Goods and verify that they conform to the Specifications. In the event that, in Onex’s judgment, the Goods or any part thereof do not conform to the requirements of the Purchase Order, Onex shall have the right to reject the Goods and exercise those remedies available to it under this Purchase Order and applicable law. No inspection, approval, test, delay, or failure to inspect or test, or failure to discover any defect or other nonconformance, will relieve Vendor of any obligations under this Purchase Order or impair or waive any right or remedy of Onex with respect to Vendor’s performance hereunder.
(c) Quality Assurance. Vendor represents and warrants that it has an adequate quality control and assurance process in place with respect to the Goods. At Onex’s request, Vendor shall furnish to Onex copies of any and all reports, analyses, certificates, or other documents of any kind generated by Vendor’s quality control and assurance process with respect to the Goods. At no time shall Vendor furnish to Onex goods that have been previously rejected by Onex or any third party without disclosure of such fact to Onex.
7. CANCELLATION AND RETURN OF GOODS
(a) Cancellation Prior to Shipping. Onex may terminate this Purchase Order without penalty or payment to Vendor of any kind at any time for any reason as to the entire Purchase Order or any discrete portion thereof prior to the earlier of (i) Vendor providing notice to Onex of shipment of the Goods or any specific portion of the Goods which Onex seeks to cancel; or (ii) actual receipt by Onex of the Goods or any specific portion of the Goods which Onex seeks to cancel.
Notice of cancellation shall be given by Onex in a writing transmitted by United States mail, private carrier, personal delivery, facsimile, or electronic mail. If such notice is given other than by personal delivery, such notice is effective when sent.
In the event of cancellation, Vendor shall cooperate in the transition of supply from Vendor to such third party as selected by Onex. Such cooperation shall include, without limitation, (i) immediately returning any and all drawings, specifications, or other documents of any kind furnished by Onex; (ii) allowing Onex access to information and documentation concerning Vendor’s manufacturing process, including without limitation on-site inspections, bill-of-material data, tooling and process detail, and samples of Goods and components; and (iii) in the event that Onex has cancelled this Purchase Order with respect to only a portion of the Goods, continuing to furnish such Goods as to which this Purchase Order has not been cancelled. Onex shall not be liable to pay any increased costs to Vendor as a result of such cooperation unless (1) this Purchase Order has been cancelled in whole or in part for reasons other than a breach by Vendor of the terms and conditions hereof; and (2) such costs have been approved in advance by Onex.
(b) Return of Goods After Shipping. Onex may, in its sole discretion and within ninety (90) days of receipt of the Goods, return the Goods or any portion thereof to Vendor provided that such Goods are unused and in saleable condition. Upon receipt of such returned Goods, (i) if payment has not yet been rendered by Onex, Vendor shall credit Onex for the full sale price of such returned Goods as shown on the Purchase Order and issue another invoice with the amount due from Onex reduced by the full sale price of such returned Goods; or (ii) if payment has been made by Onex, Vendor shall refund Onex the full sale price of such returned Goods within seven (7) days of receipt of the returned Goods from Onex.
8. BREACH AND REMEDIES
(a) Untimely Delivery. If Vendor becomes aware that it will be unable to accomplish delivery by the “Expected Date” specified on the Form, Vendor must inform Onex immediately in writing in electronic format; however, such written notification, whether timely or otherwise, shall not absolve Vendor of its obligations under the Purchase Order. If Vendor provides such written notification, or if Onex reasonably believes that Vendor will be unable to accomplish delivery by the “Expected Date” specified on the form, Onex shall be entitled to, in its sole discretion, (i) extend the time for delivery; (ii) modify the quantity of Goods in the Purchase Order; or (iii) immediately terminate the Purchase Order.
(b) Non-Conforming Goods. In the event Onex rejects the Goods tendered by Vendor, Onex may, in its sole discretion and in addition to any other remedies available under law, either (i) require Vendor to immediately replace the Goods or such portion of the Goods which Onex has determined do not conform to the Specifications at Vendor’s own cost; (ii) correct, rework, and/or repair the Goods with all costs associated therewith to be charged to and paid by Vendor; (iii) reduce the quantity of goods purchased by Onex hereunder; or (iv) terminate the Purchase Order and secure replacement Goods. Vendor shall bear any and all incidental costs associated with such rejection, including without limitation costs of removal, transportation, storage, and disposal of any non-conforming Goods from Onex’s premises and shall bear complete and full responsibility for any other loss or damage.
(c) Onex’s Damages. In the event of termination of the Purchase Order by Onex as set forth in paragraphs (a) or (b)(ii) above, replacement of Goods as set forth in paragraph (b)(i) above, or any breach of Vendor’s obligations or warranties under the Purchase Order, Onex shall be entitled to recover, in addition to any other damages or remedies otherwise available to Onex by law, damages to compensate Onex for any and all increased costs or losses, or other consequential damages of any kind resulting from the termination of the Purchase Order or the delay in delivery of the Goods by Vendor. All direct and incidental costs of rejecting and removing any non-conforming Goods shall be borne exclusively by Vendor.
(d) Vendor’s Damages. Notwithstanding anything to the contrary contained in the Purchase Order, in no event shall Vendor be entitled to any payment on account of lost profits or consequential damages in connection with any termination of the Purchase Order, or otherwise in connection with the Purchase Order.
9. PAYMENT
As a condition precedent to Onex’s duty to render payment hereunder, Vendor must (a) comply with all of its obligations hereunder, including delivering the Goods in the quantity and condition specified to the Destination no later than the “Expected Date” specified on the form, and (b) send an invoice to Onex for payment. Onex shall pay Vendor for any conforming goods within forty-five (45) days of the later of (i) the date when the Goods have been delivered, inspected by Onex, and confirmed by Onex as conforming to the Specifications or (ii) the date when the invoice is received by Onex. Any invoice submitted by Vendor must expressly reference by number the Purchase Order issued by Onex authorizing the purchase of the Goods or otherwise the invoice is invalid. In no event shall Onex pay for any overages, overshipments, or excess Goods beyond the Goods specified in the Purchase Order or otherwise authorized by Onex in a signed writing that are shipped by Vendor.
All costs, charges, taxes, and other amounts invoiced to Onex shall be denominated in, and payment shall be rendered, in United States Dollars.
10. WARRANTIES
(a) Vendor’s Warranties. Vendor warrants to Onex that all items covered by the Purchase Order conform to the Specifications provided by Onex. Vendor may not substitute other goods for the items specified by Onex without the express written consent of Onex. Vendor further warrants that all Goods provided pursuant to this Purchase Order shall be new and merchantable; fit for Onex’s intended purpose; of good material, workmanship, and design; and free from all defects of any kind. Vendor further warrants that all goods are of sufficient size or capacity to perform as specified. The Purchase Order incorporates by reference any and all warranties, whether express or implied, oral or written, made by Vendor prior to at the time the Purchase Order is issued, including those contained in brochures, catalogues, advertisements, owner’s manuals, or other similar materials.
(b) Warranty of Title. Vendor warrants that all Goods tendered to Onex pursuant to the Purchase Order shall be free from all liens, encumbrances, and any and all actual or claimed patent, copyright, or trademark infringement, and that Vendor shall have the legal ability to pass clear title in the Goods to Onex. Vendor further warrants that no lien, encumbrance, or security interest shall be filed by Vendor or anyone claiming under or through Vendor against Onex, Onex’s property, or the Goods furnished hereunder.
(c) Compliance with Laws. Vendor represents and warrants that Vendor and the Goods shall comply with any and all applicable laws, rules, regulations, orders, conventions, ordinances, or standards of the country, state, and location of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval, or certification of the Goods, including without limitation to those relating to environmental matters, data protection and privacy, wages, hours, and conditions of employment, subcontractor selection, discrimination, occupational health and safety, and motor vehicle safety.
(d) Manufacturer’s Warranties. Vendor agrees that Onex and any customer or other assignee of Onex shall have the benefit of all manufacturer’s warranties, whether express or implied, issued on or applicable to the Goods and authorizes Onex and its customers and assignees to take any and all actions and obtain any and all information reasonably necessary to avail themselves of the benefit of any such warranties.
(e) Safety. Vendor represents and warrants that all Goods delivered hereunder will be produced and delivered in a safe, proper, and workmanlike manner and in compliance with all applicable codes, regulations, laws, standards, specifications, and Onex requirements concerning safety, performance, and otherwise, including without limitation any work or services related thereto performed on premises controlled by Onex. Vendor shall provide all safeguards, and take all precautions, necessary in connection with the production and delivery of the Goods sold hereunder to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property, and shall be solely responsible therefor. Vendor further represents and warrants that the Goods shall be safe and not cause harm to personnel when the Goods are used in conformance with the requirements of their material safety datasheet.
(f) Use of Funds. Vendor hereby represents and warrants that no funds paid by Onex to Vendor hereunder shall be used for any purpose which is unlawful under either the laws of the Commonwealth of Pennsylvania, the United States of America or the laws of the place where such funds are used. It is the intent of both Onex and Vendor that no payment or transaction shall be made pursuant to this Purchase Order that is illegal, improper, or intended to unduly or improperly influence any third party, including without limitation extortion, kickbacks, or bribery.
(g) Other Warranties. The warranties provided by paragraphs (a), (b), (c), (d), (e), and (f) above are intended to be cumulative with any other warranties of any kind provided by applicable law to Onex and shall not be construed as to limit the remedies available to Onex under law.
(h) Notification. In the event that Vendor becomes aware of any facts which cause Vendor to reasonably believe that the Goods are or may become non-compliant with any of the representations or warranties set forth in paragraphs (a), (b), (c), (d), (e), or (f) above, Vendor shall immediately notify Onex of such facts and how Vendor believes that such facts render such Goods non-compliant with such representations or warranties.
11. INDEMNIFICATION
To the fullest extent permitted by law, Vendor shall indemnify, hold harmless, and defend Onex, any assignee or customer of Onex, and any and all of their respective officers, directors, employees, shareholders and agents (collectively, the “Onex Indemnitees”) from and against all claims, liabilities, injuries to or death of any person, damage to any property, other damages, losses, costs (including, without limitation, reasonable legal fees) and expenses (collectively “Claims”) arising from or relating to the purchase, use, installation, or resale of the Goods or any defect(s) in the Goods supplied, provided (a) such Claims are caused in whole or in part by any negligent act, omission, recklessness, or willful misconduct of Vendor or anybody for whose acts Vendor may be liable; and/or (b) such Claims are caused in whole or in part by the failure of the Goods to conform to the Specifications or otherwise caused by Vendor’s breach of any warranty; and/or (c) Vendor may be held responsible for such Claim under products liability law or other applicable legal or equitable principles. This paragraph includes Claims arising out of the negligence or gross negligence of the Onex Indemnitees.
Vendor, for itself, its successors, assigns, and subcontractors, hereby expressly agrees to waive any provision of any workers’ compensation act or other similar law whereby Vendor could preclude its joinder by Onex as an additional defendant, or avoid liability for damages, contribution, or indemnity in any action at law, or otherwise where Vendor’s or its subcontractor’s employee or employees, heirs, assigns, or anyone otherwise entitled to receive damages by reasons of injury or death brings an action at law against the Onex Indemnitees. Vendor’s obligations to Onex hereunder shall not be limited by any limitation on the amount or type of damages, benefits, or compensation payable by or for Vendor under any worker’s compensation acts, disability benefit acts, or other employee benefit acts on account of claims against Onex by an employee of Vendor or anyone employed directly or indirectly by Vendor or anybody for whose acts Vendor may be liable. Without limiting the foregoing, Vendor expressly waives the application of Section 303(b) of the Pennsylvania Workers’ Compensation Act or any similar or successor statute.
Vendor waives the application of the doctrines of contributory negligence and comparative negligence and any other doctrines that may otherwise allocate the liability covered by Vendor’s indemnity.
12. WAIVER OF LIENS
To the fullest extent permitted by applicable law, Vendor, for itself and for all its subcontractors, agrees that no mechanics’ lien, materialman’s lien, or other similar claim shall be filed or maintained by Vendor or any subcontractor, laborer, or any other person whatsoever for the Goods furnished under this Purchase Order. Vendor and Onex expressly intend that this provision shall be read as broadly as possible as Vendor’s voluntary release of any rights it may have under the laws of any jurisdiction to file any such lien or claim arising out of or relating to its furnishing of Goods under this Purchase Order.
13. ASSIGNMENT
Vendor shall neither assign any right or interest in this Purchase Order nor delegate any obligation owed by it hereunder without the prior consent of Onex, and any attempted assignment or delegation in violation of this Article 13 shall be void and without effect for all purposes.
14. FORUM FOR DISPUTES AND CHOICE OF LAW
This Purchase Order shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to its provisions concerning choice of law. Venue for any action arising from or relating to the Purchase Order shall be proper exclusively in the federal or state courts situated in Erie County, Pennsylvania.
15. TOOLING
‘Tooling” shall mean all tools, machines, jigs, molds, dies, samples, plants and / or equipment, measuring and testing devices (gauges), templates, models, drawings, and similar items required for manufacturing and testing of parts to be supplied. In the event the Purchase Order includes charges for tooling, all such tooling shall be the property of Onex and Vendor shall retain any tooling fabricated for Onex for a period of no less than five (5) years. Prior to disposing of any such tooling, Vendor shall provide Onex with notice of Vendor’s intent to dispose of such tooling and provide Onex with a reasonable period of time to take possession of such tooling. Vendor shall not be entitled to any fees or costs of storing such tooling from Onex.
16. PROPERTY OF ONEX
(a) Intellectual Property. Onex shall retain any and all intellectual property rights in any Specifications provided to Vendor hereunder, and nothing in this Purchase Order shall be construed as transferring any intellectual property rights to Vendor, except that Onex grants Vendor a non-exclusive, non-transferable license to use such intellectual property for the sole purpose of performing Vendor’s obligations under this Purchase Order. To the extent that this Purchase Order requires Vendor to generate or create any design for the Goods, the parties agree that any and all intellectual property rights embodied in such design shall belong to Onex. Vendor hereby grants Onex a power of attorney to execute any and all documentation of any kind to transfer any such intellectual property rights to Onex, such power of attorney being coupled with an interest and irrevocable.
(b) Other Property. Any and all property of any kind supplied to Vendor or paid for by Onex shall be and remain the property of Onex, and Vendor shall maintain such property in good condition and repair, except to the extent that such property is integrated into Goods delivered hereunder. All property of Onex, while in Vendor’s custody or control, shall be held at Vendor’s risk, free of all liens, encumbrances, and security interests of Vendor or third parties, and shall be kept insured by Vendor at Vendor’s expense in an amount equal to the replacement cost with loss payable to Onex.
All property of Onex is subject to removal by Onex at any time, and to return upon Onex’s request. Vendor assumes all risk of death or injury to persons or damage to property arising from the use of Onex property. Onex does not guarantee the accuracy of any Onex property or the availability or suitability of any property furnished by it. Vendor assumes sole responsibility for inspecting, testing, and approving all of Onex’s property supplied by Onex prior to any use by Vendor.
17. INSURANCE
Vendor agrees to maintain the following types of insurance coverage: (a) workers’ compensation insurance or qualification as a self-insured party to satisfy the laws of the states which have jurisdiction over Vendor’s employees; (b) employers’ liability insurance for bodily injury per accident with limits of not less than $1,000,000.00 and bodily injury by disease with limits of not less than $1,000,000.00 per policy; and (c) commercial general liability insurance for bodily injury, personal injury, and property damage, including coverage for products, completed operations, and contractual liability, with combined limits of not less than $5,000,000.00 per occurrence. Upon Onex’s request, Vendor shall provide Onex with written certification, reasonably acceptable to Onex, certifying that the required insurance coverages are in effect and shall not be cancelled or materially changed until thirty (30) days after prior written notice has been delivered to Onex. Upon Onex’s request, Vendor shall have Onex designated as an additional insured on Vendor’s commercial general liability policy.
To the extent permitted by law, Vendor and Vendor’s workers’ compensation insurer, if any, hereby agree to waive any right of subrogation against Onex relating to any workers’ compensation claim.
18. CONFIDENTIALITY
(a) Definition of Protected Information. Onex may, in its sole discretion, disclose certain confidential, proprietary, and/or trade secret information (collectively, “Protected Information”) for the purposes of effectuating the agreement contemplated by this Purchase Order to Vendor. Such Protected Information may include, without limitation: (i) business and financial information; (ii) business methods and practices; (iii) technologies and technological strategies; (iv) the identity of Onex’s customers and details of its projects; (v) specifications; (vi) details about products and services provided by Onex; and (vii) other such information as the Company may designate as confidential. The parties agree that all information provided by Onex to Vendor hereunder shall be presumed to be Protected Information.
(b) Use and Disclosure of Protected Information. Vendor shall neither use nor disclose any Protected Information of Onex for any purpose other than fulfilling its obligations under this Purchase Order. In the event Vendor is served with a subpoena or other legal process compelling the production of Protected Information of Onex, Vendor shall immediately notify Onex and provide Onex with a reasonable opportunity to take such action as is necessary for Onex to protect its interests prior to making disclosure.
(c) Exceptions. Notwithstanding the foregoing paragraphs, the disclosure or use of Protected Information of Onex by Vendor shall not violate these Terms and conditions if any of the following are true: (i) the Protected Information was available to Vendor prior to disclosure of said information by Onex; (ii) the Protected Information becomes publicly known through no fault of Vendor; or (iii) the Protected Information is disclosed pursuant to a subpoena or other legal process after notice has been provided in accordance with paragraph (b) above.
(d) Return of Materials. Upon completion of the transaction(s) contemplated by this Purchase Order, or upon earlier request of Onex, Vendor shall deliver to Onex any and all materials of any kind, including without limitation documents, records, drawings, prototypes, models, and schematic diagrams, which (i) describe, constitute, or in any way relate to Protected Information; or (ii) were paid for by Onex; or (iii) were prepared using Onex’s resources.
(e) Injunctive Relief. Vendor acknowledges that violation of this Article 18 will cause Onex irreparable harm. Notwithstanding any provision of these Terms and Conditions to the contrary, Onex may apply in any court of competent jurisdiction for an order or judgment enjoining Vendor from violating the terms of this Article 18.
(f) Term. Notwithstanding any provision of these Terms and Conditions to the contrary, this Article 18 shall remain in full force and effect for as long as Vendor has possession of Protected Information of Onex.
(g) Use of Onex Name and Logo. Vendor shall not, without the prior written consent of Onex, use the name, logo, or other identifying mark of Onex in any manner except as identified in this Purchase Order. Without limiting the foregoing, Vendor shall not use Onex’s name, logo, or other identifying mark for advertising purposes, disclose the fact that this Purchase Order exists, or disclose the fact that Onex is a customer of Vendor.
19. IMPORT/EXPORT
(a) Import. Vendor warrants that all sales made hereunder are or will be made at not less than fair value under the United States Anti-Dumping Law (19 U.S.C. § 160 et seq.). In the event that any of the Goods must be imported to the United States of America, Onex shall not be deemed to be a party to the importation of the Goods, the transaction contemplated by this Purchase Order shall be made after the Goods have been imported, and Vendor shall neither cause nor permit Onex’s name to be shown as “Importer of Record” on any customs declaration.
Vendor shall be responsible for strict compliance with all legal, regulatory, and administrative requirements associated with any importation or exportation of the Goods, including obtaining any required license or approvals and, unless otherwise agreed between the parties elsewhere in this Purchase Order, the payment of all associated duties, taxes and fees.
Onex shall be entitled to any transferable credits or benefits associated with the Goods, including without limitation trade credits, export credits, or rights to the refund of duties, taxes, or fees unless otherwise prohibited by applicable law. Vendor shall provide Onex with all information and records relating to the Goods necessary for Onex to (a) receive those benefits, credits and rights; (b) fulfill any customs obligations, origin marking or labeling requirements, and certification or local content reporting requirements; (c) claim preferential duty treatment under applicable trade preference regimes; and (d) participate in any duty deferral or free trade zone programs of the country of import.
(b) Export. At the request of Onex, Vendor shall cooperate with Onex in seeking any duty drawback available to Onex in connection with export by Onex of any Goods imported by Vendor and provided to Onex under this Purchase Order, or incorporating, or manufactured by Onex from, such Goods. Vendor shall (a) provide all information with respect to such imported Goods necessary to complete any such drawback claims to be filed by Onex, including United States Customs Service entry numbers, dates of entry, quantities and descriptions of goods, customs values, and rates and amounts of customs duties paid by Vendor; and (b) execute any and all applicable certificates of delivery and other documents as necessary in connection with Onex’s drawback claims.
(c) Inability to Import. In the event that Vendor is unable to import materials or other items which are necessary to fulfill its obligations under this Purchase Order, Vendor shall immediately inform Onex in writing of this fact. In such event, Onex shall be entitled to proceed as though Vendor has given notice of untimely delivery pursuant to Article 8(a) above.
20. LABOR CONTRACTS.
Vendor shall notify Onex of any labor contract expiration date at least six (6) months before the expiration of a current labor contract that has not been extended or replaced. Onex may thereafter direct Vendor in writing to manufacture up to 30 days of additional inventory of the Goods, specifying the quantities of Goods required and any packaging and storage requirements. Vendor shall use commercially reasonable efforts to comply with Onex’s written instructions prior to the expiration of the current labor contract and until the current labor contract has been extended or a new contract completed. By authorizing the additional inventory, Onex commits to buy the entire quantity of conforming Goods requested and produced.
21. MISCELLANEOUS
(a) Non-Waiver. No failure of Onex to insist upon strict compliance by Vendor with the Purchase Order or to exercise any right accruing from any default of Vendor shall impair Onex’s rights in case Vendor’s default continues or in case of any subsequent default by Vendor. Waiver by Onex of any breach of contract shall not be construed as a waiver of any other existing or future breach.
(b) Modifications Must Be In Writing. Except as expressly provided to the contrary herein, any modifications or amendments to this Purchase Order shall be invalid unless embodied in a writing signed by a duly authorized representative of Onex.
(c) Savings Clause. If any provision of this contract is held invalid under the applicable statute or rule of law, such invalidity shall not affect any other provision, and each provision or part hereof is declared to be severable.
(d) Independent Contractor. Vendor is and shall remain at all times and for all purposes an independent contractor of Onex. No employee, agent, or representative of Vendor or its subcontractors shall be deemed to be an employee of Onex.