1. Sole Terms; Acceptance. Each order for the purchase of goods and/or services, including work product and deliverables, (“Supplies”) issued by Acela, Inc (“Order”) is expressly limited to these Terms. Supplier accepts the Order and these Terms by (i) written acceptance or acknowledgement, (ii) commencing performance, or (iii) acceptance of payment. Any additional or different terms proposed by Supplier are expressly rejected by Acela, Inc.
2. Buyer; Parties. Buyer is the Acela, Inc entity stated in the Order. Supplier’s sole recourse under the Order shall be against such entity, and no other Acela, Inc entities. Buyer is referred to as Acela, Inc, and Supplier and Acela, Inc are collectively referred to as Parties and individually as Party.
3. Quantity; Forecast.
3.1 Quantities purchased by Acela, Inc shall be as stated in the Order, with no minimum purchase obligations. Title to Supplies (including licenses to services) shall pass to Acela, Inc at the earlier of (i) payment by Acela, Inc or (ii) receipt of Supplies by Acela, Inc per the delivery terms in the Order. In the event of advance or progress payments, Supplier shall reasonably identify or otherwise mark Supplies as Acela, Inc property.
3.2 Any estimates or forecasts of production volumes or program durations are subject to change from time to time, with or without notice to Supplier, and shall not be binding on Acela, Inc. Unless otherwise stated in the Order, Acela, Inc makes no guaranty or commitment of any kind to Supplier regarding Acela, Inc requirements for Supplies.
3.3 For “blanket” or similar orders with no quantity specified, Supplier shall deliver Supplies as scheduled by Acela, Inc.
4. Pricing; Payment.
4.1 The price of Supplies includes all taxes, tariffs, storage, handling, packaging and all other expenses and charges of Supplier. Prices are not subject to increase.
4.2 Acela, Inc shall pay invoices within thirty (30) days, or other period agreed in writing, from the first batch processing date, not to exceed one-hundred-and-twenty (120) days, after Acela, Inc receipt of a correct invoice, and the Parties expressly agree to such payment terms. When the Parties are not permitted to agree to payment terms in excess of local legislation, a shorter payment period may be applicable.
5.1 Supplier is liable for and shall pay all taxes, impositions, charges and exactions except for applicable sales, VAT/GST or similar taxes that are separately stated on Supplier's invoice.
5.2 Prices shall not include any taxes, impositions, charges or exactions for which Acela, Inc has furnished a valid exemption certificate or other evidence of exemption.
5.3 If any tax included in the Order was not required to be paid by Acela, Inc, Supplier shall notify Acela, Inc and make a prompt refund to Acela, Inc.
6. Delivery; Packing, Drayage and Containers; Expedited Delivery.
6.1 Time is of the essence in making deliveries under the Order.
6.2 Unless otherwise stated in the Order, all Supplies shall be delivered to the place stated in the Order or if not stated, Acela, Inc place of business.
6.3 If Acela, Inc pays for transportation, Supplier shall comply with Acela, Inc routing instructions, including choice of designated logistics carrier, if stated on the agreement.
6.4 Supplier is responsible for the cost of boxing, crating, and packing. Supplier shall prepare, at its expense, labels as specified by Acela, Inc. Supplier is liable for damage to Supplies caused by improper boxing, crating or packing.
6.5 Supplier shall pay all additional freight costs if Supplier needs to use an expedited shipping method to meet agreed delivery dates due to its own acts, omissions, or Supplier claim of Force Majeure per Section 29.3.
6.6 Except as otherwise set forth in Article 29, Supplier shall have no right to terminate or not to deliver according to the Order for any reason. In the event that Supplier takes action or fails to act in a manner that disrupts or threatens to disrupt Acela, Inc ability to produce (including but not limited to line downs, interruption of production, or shipping delays) Supplier acknowledges and agrees that Acela, Inc shall be entitled to pursue the remedies set forth in Article 31.
7. Customs, Exports and Related Matters. Supplier shall comply with all applicable import and export laws. Supplier shall assist Acela, Inc in minimizing the costs of international transactions by providing documentation to support claims. Supplier is responsible for all costs associated with import and export compliance, including obtaining and paying for licenses or authorizations, certificates of origin and proper documentation for any import, export, or preferential duty claim. Any credits or refunds including tax, export or trade credits belong to Acela, Inc.
8. Changes. If Acela, Inc requires modifications to any aspect of the Order, including drawings, designs or specifications, the Parties shall negotiate an equitable adjustment, if any, in the form of a change order or amendment. Supplier shall not make any changes without Acela, Inc prior written consent. No claim by Supplier for adjustment shall be allowed unless in writing and received by Acela, Inc within thirty (30) days from the date notice is received by Supplier. Nothing in this clause shall excuse Supplier from performance of the Order as changed, including during the pendency of any claim.
9. Inspection; Audit. Acela, Inc or its representative may enter, inspect and/or audit on reasonable notice Supplier’s plant, books and records to verify compliance with Acela, Inc requirements.
10. Warranties. Supplier warrants and represents that (a) all Supplies shall: (i) conform to the specifications, standards, drawings, samples, descriptions and revisions furnished by Acela, Inc; (ii) be merchantable and free of defects in design, materials and workmanship; (iii) be fit for the purposes intended by Acela, Inc, (iv) be free of all liens, claims and encumbrances, (v) be manufactured entirely with new materials and free from latent defects, (vi) be free from viruses, disabling code, and open source software, (vii) be genuine, new and unused, and, (b) any work shall be performed in a professional manner and consistent with best industry standards.
11.1 Supplier shall defend, indemnify and hold Acela, Inc harmless against any losses, liabilities, damages, claims, suits, actions, proceedings, subrogation, costs, and expenses including court costs and attorneys’ fees in connection with the Order including: a) death, injury or damages to any person or property; b) recall campaigns which in Acela, Inc reasonable judgment are required; c) counterfeit parts, including parts that have been copied or substituted without legal right or authority; d) Supplier’s use of Acela, Inc machinery or equipment, where for such claim Supplier shall assume sole responsibility. e) actual or alleged infringement, direct or contributory, of Intellectual Property rights defined in Section 24.1; f) subcontractor performance; and, g) violation of law.
11.2 On receipt of notification, Supplier shall assume responsibility for the defense of any claims, suits, actions, or proceedings for which Supplier shall indemnify Acela, Inc. Acela, Inc has the right to be represented and participate through its own counsel in the defense and resolution of any indemnification matters. The indemnification obligations of Supplier are independent of warranty obligations of Supplier. Supplier may not settle or otherwise dispose of any such indemnified claims, suits, actions or proceedings without the prior written approval of Acela, Inc.
12.1 Supplier shall maintain appropriate insurance coverage, in accordance with best industry practices, with a reputable insurance company against all relevant losses, liabilities and indemnities that may arise in connection with the Order and Supplier’s operations. Acela, Inc may specify additional insurance coverage requirements applicable to the Order. Such coverage shall not limit Supplier’s liability under the Order.
12.2 On Acela, Inc request, Supplier shall provide Acela, Inc with a copy of the insurance certificate evidencing coverage.
13. Acela, Inc Standards; Industry Standards. Supplier, and its suppliers, per Acela, Inc specification if applicable.
14. Environmental, Health and Safety. When at any Acela, Inc location, Supplier shall comply with Acela, Inc environmental, health and safety (“EHS”) requirements.
15. Interchangeability. All Supplies, which were not subject to validation testing or approval by an Acela, Inc customer, shall be interchangeable with like supplies purchased from Supplier previously by Acela, Inc. Supplier may not make any change to any Supplies designs, processes, or procedures without Acela, Inc prior written approval.
16. Acela, Inc Property.
16.1 Acela, Inc owns all materials made available to Supplier by Acela, Inc as well as all replacements of those materials (“Acela, Inc Property”).
16.2 Supplier shall clearly mark Acela, Inc Property and safely store separate and apart from Supplier’s property in good condition, bear the risk of loss and ship at Supplier’s expense to Acela, Inc in as good condition as originally received by Supplier, reasonable wear and tear excepted.
16.3 Supplier may not use any Acela, Inc Property except for performance of work under the Order or as authorized in writing by Acela, Inc.
16.4 At any time Acela, Inc may inspect and remove Acela, Inc Property and Supplier grants Acela, Inc an immediate right of access at any time to enter Supplier’s premises to inspect and remove Acela, Inc Property without any liability to Supplier.
16.5 Acela, Inc disclaims all warranties, express or implied, with respect to Acela, Inc Property. Supplier waives all claims in respect of Acela, Inc Property.
17. Special Tooling.
17.1 The term “Special Tooling” includes all special equipment, manufacturing aids, and drawings acquired, manufactured, or used in the performance of the Order, that are of a specialized nature.
17.2 Supplier shall only use Special Tooling for performance under the Order. Supplier shall keep Special Tooling in good condition and fully covered by insurance. Upon termination or expiration of Order, Supplier shall immediately transfer title and possession of Special Tooling to Acela, Inc for an amount equal to the unamortized cost of Special Tooling or dispose of it as Acela, Inc may direct.
18. Choice of Law; Dispute Resolution.
18.1 The Order is governed by the laws of the country or State, as applicable, of the Acela, Inc legal entity’s incorporation.
18.2 The Parties shall attempt good faith resolution of a dispute within thirty (30) days, during which time Supplier shall perform the Order in accordance with Acela, Inc instructions. If the Parties are unable to resolve the dispute within that period, the Parties shall submit to an appropriate dispute resolution procedure selected by Acela, Inc. THE PARTIES EXPRESSLY WAIVE ANY RIGHTS TO A JURY TRIAL (IF APPLICABLE).
18.3 If there is any dispute arising under the Order, Acela, Inc and Supplier shall proceed diligently with the performance required under the Order pending resolution of the dispute.
19. Compliance with Applicable Laws. Supplier shall comply with all applicable laws, statutes, rules, regulations, orders, and standards in any jurisdiction.
20. Anti-Corruption. In connection with all business transactions with Acela, Inc:
20.1 Supplier and its suppliers shall comply with applicable national and international anti-bribery rules, including the U.S. Foreign Corrupt Practices Act (FCPA), United Kingdom, and European Union, Organization for Economic Co-operation and Development (OECD) and Council of Europe anti-bribery rules.
20.2 Supplier shall not directly or indirectly solicit, receive or offer any form of bribe, kickback, or other corrupt payment or thing of value to or from any person or organization, including government agencies or officials, companies or personnel of those companies.
20.3 Supplier and its affiliates shall at all times keep complete and accurate books and records, and all records and information that Supplier provides to Acela, Inc pertaining to the Order shall be complete and accurate.
21. U.S. Government Contracts.
21.1 If any Supplies are to be used on a U.S. Government contract, supplier shall accept mandatory flow-down clauses at no additional cost to Acela, Inc.
21.2 Supplier shall comply with Defense Priorities and Allocation System (DPAS) Regulation (15 CFR 700) if the Order is rated.
21.3 Supplier certifies that it, or Supplier’s principals, are not debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by a Federal agency.
22.1 Any confidential, proprietary or non-public information, including drawings, descriptions, specifications and any other Intellectual Property made available to Supplier or created for Acela, Inc related to the Order (“Confidential Information”) is the property of Acela, Inc.
22.2 Supplier and its representatives shall protect Acela, Inc Confidential Information, and shall not disclose, copy, reproduce, reverse engineer or transfer Confidential Information to any third parties or use for purposes other than fulfilling its obligations under the Order.
23. Data Security and Cybersecurity.
23.1 Supplier may receive or have access to information relating to identified or identifiable individuals (“Personal Data”), including Acela, Inc employees, temporary workers, contractors, consultants, customers or suppliers. Personal Data, in whichever form, is of a very sensitive nature, and Supplier shall keep Personal Data strictly confidential and use it (i) only within the limits authorized by Acela, Inc and for the purpose of Supplier’s performance under the Order, and (ii) in accordance with all applicable laws, and where applicable.
23.2 Supplier shall operate and maintain an information and cybersecurity program, including administrative, physical and technical safeguards, designed to protect against and prevent any unauthorized use, access, processing, destruction, loss, alteration or disclosure of Confidential Information and Personal Data (“Security”). Upon the request of Acela, Inc, Supplier shall provide proof of Supplier’s Security and submit its processing facilities for audit of the processing activities covered by the Order. Such audit shall be carried out by Acela, Inc or its agents with the required professional qualifications and a duty of confidentiality. Supplier shall immediately notify Acela, Inc of any perceived, potential or actual breach to Supplier’s Security (“Breach”), and provides a full description of the Breach, the impact and mitigation efforts. Supplier will then promptly (a) investigate, remediate, and mitigate the effects of the breach; and (b) provide Acela, Inc with assurances reasonably satisfactory to Acela, Inc that such breach will not recur. If Acela, Inc determines that notices or other remedial measures are warranted, Supplier will, at Acela, Inc request and at Supplier’s cost, undertake such remedial actions.
23.3 Any software provided by or on behalf of Supplier shall not contain any computer code or other mechanism that would allow Supplier or others to access information on Acela, Inc computers, networks or products for any purpose including viewing, transmitting or conveying such information to Supplier or any other party. If vulnerability is discovered in any software which may be exploited by others, Supplier agrees, at Supplier’s cost, to immediately take all corrective actions necessary to prevent such exploitations or identify, contain, eradicate and recover Acela, Inc assets if an exploitation occurred.
24. Intellectual Property.
24.1 “Intellectual Property” includes any patent, trademark, trade secret, copyright, design, know-how, or other proprietary right.
24.2 Acela, Inc retains all right, title and interest in and to its Intellectual Property related to the Order. Any license of Acela, Inc Intellectual Property is granted solely for the limited right to permit Supplier to perform its obligations under the Order for the sole benefit of Acela, Inc.
24.3 Supplier retains its Intellectual Property that existed before this Order. Supplier grants Acela, Inc a worldwide, nonexclusive, royalty free, irrevocable, perpetual license under its Intellectual Property to use, sell, repair and reconstruct Supplies and copy, distribute and create derivative works of copyrightable work product and deliverables.
24.4 Supplier hereby assigns to Acela, Inc all right, title, and interest in and to all Intellectual Property in Supplies created for Acela, Inc related to the Order.
24.5 Supplier shall promptly disclose all Intellectual Property owned by Acela, Inc pursuant to Section 24.4, including all inventions, and shall execute any documents necessary to perfect Acela, Inc ownership therein.
25. Product Stewardship Requirements.
25.1 Supplier and its suppliers shall comply with all applicable Product Stewardship Requirements regardless of the place Supplies are created or delivered to Acela, Inc or the ultimate place Acela, Inc own products or its customers’ products are sold or used. “Product Stewardship Requirements” include laws, regulations, industry standards and Acela, Inc, or Acela, Inc customer, requirements concerning (i) chemical or materials composition, labeling, recycling, take back/end-of life, and disposal, (ii) product design for safety, energy efficiency, and recyclability, or similar life-cycle requirements, and (iii) product packaging and transportation.
25.2 Supplier, at its cost, shall (i) identify chemical and material names and quantities contained in Supplies, (ii) identify chemical and material composition and information to allow safe use of Supplies, (iii) complete any Material Declaration or similar information requests by Acela, Inc, (iv) complete required registration with regulatory agencies of chemical or materials composition of Supplies, (v) propose alternate solution to ensure continuity of supply if delivery of Supplies is prohibited, (vi) cooperate with Acela, Inc in evaluating Supplies’ environmental impact per international or other standards defined by Acela, Inc, and (vii) provide Acela, Inc with evidence that Supplies comply with Product Stewardship Requirements.
26. Termination for Convenience. Acela, Inc reserves the right to terminate the Order, or any part hereof, at its sole convenience. Upon receipt of termination notice, Supplier shall immediately cease all work and ensure all of its suppliers and subcontractors cease work. Within thirty (30) days of such termination, Supplier shall submit necessary documentation to claim reasonable termination costs if any, which shall only include Supplier’s direct costs that have been incurred as a result of termination. Any claim shall be deemed waived unless asserted within thirty (30) days from Supplier’s receipt of the Acela, Inc termination notice.
27. Termination for Default.
27.1 Upon written notice to Supplier, Acela, Inc may terminate all or part of the Order if (i) Supplier defaults in the performance of any provision of the Order, including late delivery or Supplier’s failure to make reasonable progress towards completion of the Order, and such default is not cured within seven (7) days, or (ii) in the event of Supplier’s bankruptcy, suspension of business, insolvency, appointment of a receiver for Supplier’s property or business, or any assignment, reorganization or arrangement by Supplier for the benefit of its creditors.
27.2 Supplier shall be liable for, and pay to Acela, Inc, any costs, including the cost for additional managerial and administrative services, in excess of the price for Supplies.
27.3 In the event of a termination for default, Supplier shall protect and preserve property in its possession where Acela, Inc has an interest.
27.4 Acela, Inc is entitled to a refund of all monies paid to Supplier for the terminated Order.
28. Transition of Supply. In the event of termination or expiration of the Order, Supplier shall have the absolute obligation to continue to provide services or produce goods in accordance with the terms of the Order (including price) for a reasonable period of time so as to permit Acela, Inc the opportunity to transition the production of the subject Supplies to a third party and so as to avoid any interruption of production at Acela, Inc facilities or the facilities of Acela, Inc customers. Supplier must reasonably cooperate in this transition of supply, including providing information and documentation regarding manufacturing process for Acela, Inc Supplies, including onsite inspections, bill-of-material data, tooling and process detail and samples of Supplies and components.
29. Force Majeure.
29.1 Neither Party will be in default for any delay or failure to perform due to natural, civil or political causes beyond its control and without its fault or negligence (“Force Majeure”).
29.2 The following shall not constitute a Force Majeure event for Supplier: i) Supplier’s ability to sell Supplies at a more advantageous price, ii) increases in Supplier’s production costs, iii) interruptions in Supplier’s supplies, including if a supplier fails to supply Supplier, or (iv) labor disputes or strikes at Supplier’s facilities, or, (v) epidemics.
29.3 The Party affected by a Force Majeure event shall promptly provide written notice to the other, explaining in detail the full particulars and expected duration of the event, and shall use its best efforts to remedy the event.
29.4 If Supplier’s delivery is delayed by a Force Majeure event, Acela, Inc may cancel deliveries per Section 27.
30.1 Supplier will make best efforts to make delivery of Supplies during an epidemic, including Supplier payment for expedited freight costs to meet Order delivery commitments.
30.2 Prior to the delivery of Supplies, Acela, Inc may cancel Orders for reasons attributable to the outbreak of any epidemic. Acela, Inc cannot be held liable, and Supplier shall not be entitled to any damages or indemnifications resulting from an epidemic.
31.1 The rights and remedies available to Acela, Inc are cumulative and in addition to all other legal or equitable remedies.
31.2 Acela, Inc may reject Supplies that are nonconforming and return rejected Supplies without payment to Supplier. Supplier may not repair rejected Supplies unless Acela, Inc authorizes repair in writing. Supplier shall reimburse Acela, Inc for all damages caused or required by Supplier’s breach or by nonconforming Supplies.
31.3 Monetary damages may not be a sufficient remedy for any actual, anticipatory or threatened breach of the Order and, in addition to all other rights and remedies that Acela, Inc may have, Acela, Inc shall be entitled to specific performance and injunctive equitable relief as a remedy.
31.4 Acela, Inc has the right to set-off against any amounts payable by Acela, Inc or its affiliates to Supplier or its affiliates.
31.5 If Supplier alleges a breach of the Order by Acela, Inc, Supplier shall continue performance until such allegation is resolved.
31.6 If any portion of the Order is invalid or unenforceable, the remaining portions of the Order remain valid and enforceable.
32. No Publicity. Supplier shall not make any release regarding the Order or use of Acela, Inc trademark or trade name, including any public announcement or advertising.
33. Relationship of Parties. Each Party is an independent contractor and the Order shall not constitute, create, or give effect to or otherwise imply a joint venture or partnership of any kind. Neither Party shall be deemed to be an employee, agent, partner, legal representative or joint employer of the other, nor shall have any right, power or authority to create any obligation on behalf of or bind the other in any way.
34. No Implied Waiver. Acela, Inc failure to insist upon Supplier’s performance of any obligation or to exercise any right shall not constitute a waiver of future performance or future exercise of a right. Supplier’s obligations with respect to future performance and rights shall continue.
35. Survival. Any provision intended to survive termination or expiration, including Sections 10, 11, 12, 16, 17, 21, 22, 23, 24, 27, 28, 30 and 31 shall remain in full force and effect notwithstanding termination or expiration.
36. Entire Agreement; Modifications; Updates.
36.1 These Terms constitute the entire agreement.
36.2 Amendments can only be made by written document signed by Acela, Inc and Supplier.
36.3 Acela, Inc may update its Terms. Updated Terms shall apply to all Orders after the effective date of the updates. Where a web link is incorporated by reference into these Terms, the most recently updated version shall apply.
37. Assignment; Subcontractors. Supplier shall not assign, subcontract or otherwise transfer any of its rights or obligations under the Order unless agreed in writing. Supplier will impose these Terms on all subcontractors and shall be liable for subcontractors’ performance.
38. Notices. When required by these Terms, notices to Supplier shall be sent to Supplier’s address on the Order. Notices to Acela, Inc shall be sent to Acela, Inc address on the Order. All notices shall be delivered personally, or by postage prepaid registered mail, return receipt requested. Notice is effective on receipt by a Party.
39.1 Headings are for convenience only.
39.2 The term “including” when used in these Terms, shall mean “including, but not limited to”.
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