STANDARD VENDOR TERMS AND CONDITIONS
“Buyer” means Limitless Innovations, Inc., an Illinois corporation. “Supplier” means the party selling the applicable products or services to Buyer. By selling products or services to Buyer, Supplier confirms that the following terms and conditions (collectively the “Standard Vendor Terms & Conditions”) shall apply to Buyer’s purchases. Any modifications to these Standard Vendor Terms and Conditions must be in writing and signed by Buyer. References to “products” include items specifically provided for in the Purchase Order (as defined below) or incorporated in goods and services Buyer purchases from Supplier.
1. TERMS AND CONDITIONS OF PURCHASE, (a) Any products or services Buyer purchases from Supplier by electronic, phone, paper or any other form of transmission, are purchased subject to the following terms: (i) if Supplier already has a fully signed purchase order currently in effect with Buyer, then the terms of that agreement, together with any terms and conditions of these Standard Terms and Condition apply. In the event of a conflict between these Standard Terms and Conditions and the terms of any Purchase Order, then in such instance, the terms of these Standard Terms & Conditions shall prevail and dictate; and (ii) if Supplier does not already have a fully signed Purchase Order with Buyer, then the Standard Vendor Terms & Conditions shall constitute the complete agreement between the parties. The signed order for goods and services signed by the Supplier shall be referred to as the “Purchase Order”. No other terms or conditions including, without limitation, Supplier’s standard printed terms and conditions, whether printed on Supplier’s proposal, order acknowledgement, invoice or otherwise, will have any application to any purchase between Buyer and Supplier unless specifically accepted in writing by Buyer, and which terms shall be excluded and rescinded absent written consent by Buyer.
(b) Supplier may not assign or subcontract its obligations under the Purchase Order without the prior written consent of Buyer, and if Supplier does so, the assignment or subcontract will be void.
(c) Supplier acknowledges the ongoing business relationship between the Supplier and Buyer will be subject all times to the Standard Vendor Terms and Conditions. Supplier acknowledges that these Standard Vendor Terms & Conditions shall apply to any future purchase by Buyer of goods and services from Supplier regardless of whether the future purchase involves an executed Purchase Order.
(d) The Purchase Order shall be governed by, and interpreted under, the substantive laws of the State of Illinois. All disputes arising between the parties, arising by contract, tort or otherwise, shall be adjudicated in the Circuit Court of McHenry County, Illinois as the exclusive jurisdiction and venue.
(e) Forecasts. Buyer may provide Supplier with forecasts of its future anticipated Deliverable requirements. Supplier acknowledges that any such forecasts, including, without limitation, Estimated Annual Volumes, are for informational purposes only and are based on a number of factors which may change over time. Buyer makes no representation, warranty, guaranty or commitment of any kind or nature, express or implied, regarding any such forecasts, including, without limitation, with respect to the accuracy or completeness of such forecasts.
2. PRICING (a) Unless otherwise provided elsewhere in the Purchase Order, prices are: (i) stated in U.S. dollars; and (ii) no extra charges of any kind will be allowed unless specifically agreed to by Buyer in writing. Supplier acknowledges and agrees that once a Purchase Order is executed by Supplier, pricing shall not be subject to change unless agreed to by all parties.
(b) Unless prohibited by law, Supplier will separately indicate on its invoices any taxes imposed on the sale or delivery of products or services.
(c) Supplier warrants that it is selling at the lowest prices and upon the most favorable terms (including, without limitation, volume, quality and/or payment terms) that it offers any buyer for products or services of the same or similar quality to that provided for in the Purchase Order. If, during the term of the Purchase Order, Supplier makes an offer to sell any such products or services to a third party at a lower price or upon one or more terms that are more favorable than the price or terms then applicable under the Purchase Order, then an equivalent reduction or modification of terms will apply to all products or services purchased thereafter for the balance of the term of the Purchase Order.
3. TRANSPORTATION; DELIVERY. (a) Delivery dates are firm and TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY. Supplier will promptly notify Buyer in writing if Supplier anticipates difficulty in complying with a required delivery date and will use all commercially reasonable efforts to meet the required delivery date as set forth in the Purchase Order. Buyer has no obligation to accept deliveries that are not made on the required delivery date and may ship product delivered outside of delivery parameters back to Supplier at Supplier’s sole cost and expense and utilizing Supplier’s account. If Supplier fails to meet a required delivery date, Buyer may procure replacement products or services. Supplier will be responsible for all costs incurred by Buyer as a result of early or late deliveries. If Supplier has to use premium freight, Supplier will notify Buyer in writing of the type and monetary value of the premium freight used (for Buyer’s records).
(b) Unless otherwise provided elsewhere in the Purchase Order, delivery will occur, and title and risk of loss will transfer, when: (i) with respect to product not incorporated into services, upon delivery to and acceptance by, Buyer and (ii) with respect to product incorporated into services, the completed services have been accepted by Buyer.
4. INSPECTION. Buyer may inspect and test all products and services and all materials, equipment and facilities utilized by Supplier in producing products or providing services for Buyer. Unless otherwise agreed by Buyer in writing, Supplier will deliver to Buyer a certificate of analysis as to specifications approved by Buyer with respect to each product lot shipped including but not limited to Quality Control Checklist, Certificate of Conformance (“COC”), Inspection Reports, etc. as required by Buyer from time to time.
5. WARRANTIES, (a) Supplier warrants that all products and services will be: (i) free of any claims by third parties; (ii) in strict accordance with the specifications, samples, drawings or other descriptions approved by Buyer and as may be set forth in the Purchase Order; (iii) merchantable; (iv) free from defects; and (v) to the extent that Buyer relies on Supplier to specify the products or services, fit for their intended purpose. Supplier further warrants that all services will be performed in accordance with the standards of care and diligence normally practiced by persons performing similar services and in the best workmanlike manner. The above warranties will be in effect thirty-six (36) months from the date the product is first sold to the general public.
If any products or services fail to conform to the above warranties, Supplier, at Buyer’s option, will: (i) with respect to products, replace or repair the nonconforming products at Supplier’s cost (and with Supplier paying for shipment thereof); (ii) with respect to services, re-perform all services necessary to correct any such nonconformity at Supplier’s cost; or (iii) refund the purchase price of the nonconforming products or services and any related costs incurred by Buyer. Any replacement products or services also will be subject to the above warranties and warranty period. The warranty period for repaired products will be extended to account for the time lapsed until the repair was completed. If Supplier does not replace, repair or re-perform, as applicable, within a reasonable time after notice, Buyer may do so at Supplier’s expense.
(b) Any rights or remedies of Buyer set forth in the Purchase Order are not exclusive and Buyer also has all rights and remedies available under applicable law.
If at any time a governmental agency of any country, state, province or municipality requires Buyer to conduct a product safety recall or Buyer voluntarily undertakes such an action, related to the products, Buyer will notify Supplier of the initiation any such action and Supplier shall, at Buyer’s option, either repair or replace the related products, and reimburse Buyer for any costs, expenses or damages.
(c) In addition to the remedies set forth above, with respect to any product that does not meet the specifications of the Purchase Order, all labor hours, sorting costs and administrative costs incurred by Buyer shall be paid by Supplier and/or offset against amounts due and owing by Buyer to Supplier.
6. QUANTITY TERMINATION; ORDER CHANGES, (a) Buyer may, by written notice to Supplier, terminate its purchase of any quantity of products or services (i) for convenience, (ii) if Supplier fails to complete or deliver any part thereof when required, or (iii) if Supplier is in breach of any material term of the Purchase Order. If terminating for convenience, Buyer will pay Supplier only for product that has been delivered by Supplier to Buyer as of the date of the notice of termination issued by Buyer. If termination is due to a failure of completion or delivery or breach of any material term of the Purchase Order, no termination charges will apply and Buyer may procure substitute products or services and Supplier will be liable to Buyer for any excess costs incurred by Buyer.
(b) Prior to shipment or completion, Buyer may request changes with respect to the products or services to be provided, including, changes in method of shipping or packing, time or place of delivery and increases in delivered quantity.
(c) Supplier agrees to keep an inventory of a specific product as may be required under the terms and conditions of any Purchase Order. Supplier agrees to submit monthly stocking reports to Buyer for any inventory held by Supplier. At the request of the Buyer, inventory of finished product shall be held in quantities and for periods of time as may be requested by Buyer in accordance with the terms of a Purchase Order.
7. COMPLIANCE WITH LAWS. All products supplied to Buyer shall comply with, and Supplier agrees to be bound by, all applicable foreign, United States federal, state and local laws, orders, rules, regulations, guidelines, standards, limitations, controls, prohibitions, or other requirements contained in, issued under, or adopted pursuant to such laws, including, without limitation, product content and labeling, including, without limitation, the U.S. Toxic Substances Control Act and applicable RoHS and REACH regulations, anti-bribery, anti-corruption laws, Conflict Mineral prohibition and Conflict Mineral disclosure requirements. Supplier further agrees that neither it nor any of its subcontractors will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the production or provision of products. Delivery of any products shall constitute Supplier’s representation to Buyer that there has been and will be full compliance with all applicable laws and, at Buyer’s request, Supplier shall certify in writing its compliance with the foregoing:
(a) Environmental Compliance. Supplier shall comply with all applicable state, local and United States federal environmental laws and regulations; and
(b) From time to time, at Buyer’s request, Supplier shall provide certificates to Buyer relating to compliance with any applicable legal requirements, including those listed in Section 7 above.
8. CONFIDENTIAL INFORMATION; OWNERSHIP OF DOCUMENTS AND MATERIALS, (a) Supplier will treat as confidential and not disclose any information received from Buyer in connection with the Purchase Order to any person not authorized by Buyer in writing to receive it. Supplier will use such information only as necessary to fulfill its obligations under the Purchase Order. Upon termination of the Purchase Order, all such information will be returned to Buyer, or at Buyer’s option, destroyed by Supplier. Supplier will not make any announcement or release any information concerning the Purchase Order to any other person or entity, including the press or any official body, except as required by law, unless prior written consent is obtained from Buyer.
(b) All drawings, models, specifications, designs, Intellectual Property Rights (defined below) and other documents and materials prepared by Supplier specifically in connection with the products or services supplied under the Purchase Order will become Buyer’s sole and absolute property and be delivered to Buyer, as part of the consideration of this Purchase Order free and clear of any third party claims. Supplier hereby assigns to Buyer any and all rights that Supplier has in and to all such documents and materials to Buyer.
9. INTELLECTUAL PROPERTY INFRINGEMENT. Supplier represents and warrants that the sale or use of the products or services provided to Buyer will not
infringe or contribute to the infringement of any patents, trademarks, or copyrights anywhere in the world. If any product, service, or part thereof is
held to constitute an infringement, Supplier will, at its expense, obtain for Buyer a license to use the item or service, or replace or modify the same, in a
manner satisfactory to Buyer, so as to avoid the infringement. Supplier shall not assert any of its patents or other intellectual property rights against
Buyer or Buyer’s affiliates or customers worldwide in connection with any use of products or services provided to Buyer in the production, use,
preparation, sale, or delivery of, or other action with respect to, the products or services of Buyer or Buyer’s affiliates or customers.
10. QUALITY, (a) Supplier will not change the manufacturing location, manufacturing process, raw materials or proportions of raw materials used in products delivered to Buyer under the Purchase Order unless Supplier notifies Buyer in writing of the change at least ninety (90) days before its implementation and Buyer agrees to the change in writing. Supplier will be liable for all losses and damages that Buyer may suffer if Supplier does not comply with the requirements of the preceding sentence. At Buyer’s request, Supplier will provide samples of product produced with the proposed change to test in Buyer’s manufacturing process.
(b) Supplier will participate in programs implemented by Buyer with respect to quality in manufacturing and delivery of products and services.
11. INDEMNIFICATION. Supplier will fully defend, indemnify, hold harmless and reimburse Buyer, its officers, directors, shareholders, affiliates, subsidiaries, employees, agents, customers and assigns from and against all claims, suits, actions, proceedings, damages, losses and expenses, including attorneys’ fees, arising out of, related to, or resulting from: (a) any breach of any representation, warranty, certification, covenant or agreement made by Supplier in the Purchase Order; (b) any negligence or willful misconduct of Supplier or its agents or subcontractors in connection with performance under the Purchase Order; (c) any litigation, proceeding or claim by any third party relating to the obligations of Supplier under the Purchase Order; (d) any violation of law by Supplier, its employees, agents, affiliates, contractors or subcontractors and (e) Supplier’s use, control, ownership, or operation of its business and facilities, except to the extent caused by the negligence of Buyer. Supplier agrees to include this Indemnification provision in any subcontracts issued hereunder.
12. BUYER’S PROPERTY. Unless Buyer otherwise agrees in writing, all tools, equipment or other materials furnished to Supplier by Buyer are the personal property of Buyer. Whenever practical, Supplier will adequately identify Buyer’s property and safely store it separate and apart from Supplier’s property. Supplier will not substitute any property for Buyer’s property and will use such property only in fulfilling its obligations under the Purchase Order. While in Supplier’s custody or control, Buyer’s property will be held at Supplier’s risk, kept insured by Supplier at Supplier’s expense, and subject to removal at Buyer’s request.
13. SET-OFF. Buyer may set off any amount owing at any time from Supplier to Buyer or any of its affiliated companies against any amount payable at any time by Buyer under the Purchase Order.
14. FORCE MAJEURE, (a) Any non-performance or delay in performance of any obligation of Supplier or Buyer under the Purchase Order will be excused to the extent such failure or non-performance is caused by “Force Majeure.” “Force Majeure” means any cause preventing performance of an obligation under the Purchase Order which is beyond the reasonable control of the Supplier or Buyer, and which, by the exercise of due diligence, could not be overcome, including without limitation, fire, flood, sabotage, shipwreck, embargo, explosion, accident, riot, acts of a governmental authority, and acts of God. In no event shall Supplier’s ability to sell products or services at a better price or Supplier’s economic hardship in buying raw materials necessary to manufacture products at a commercially reasonable price constitute Force Majeure.
(b) If Buyer or Supplier is affected by Force Majeure, it will (i) promptly provide notice to the other party, explaining the full particulars and the expected duration of the Force Majeure and (ii) use its best efforts to remedy the interruption or delay if it is reasonably capable of being remedied. In the event of Force Majeure, deliveries or acceptance of deliveries of products or services which have been suspended will not be required to be made up on the resumption of performance and, to the extent not otherwise permitted under the Purchase Order, Buyer will have the right to purchase products and services from other sources during the period of Force Majeure. If a Force Majeure extends for more than sixty (60) days, the Purchase Order may be terminated upon written notice by the party not declaring Force Majeure without any liability on its part.
(c) If a Force Majeure compels Supplier to allocate deliveries of products or services, Supplier will make such allocation in a manner that ensures Buyer at least the same proportion of the Supplier’s total output as was purchased by Buyer prior to the Force Majeure. Supplier will use best efforts to source products or other items, at Supplier’s expense, from its own or its affiliates’ global operations or the market in order to meet Buyer’s required delivery dates.
15. TERMINATION. In the event of any breach of these Standard Vendor Terms & Conditions by Supplier, Buyer shall have the right to immediately terminate the Purchase Order, without further compensation to the Supplier and without Supplier’s ability to abate the termination. In addition, Supplier shall compensate Buyer for any damages suffered by Buyer as a result of Supplier’s breach hereof. After receipt of a notice of termination, the Supplier shall immediately: (i) stop work as directed in the notice; (ii) place no further subcontracts or purchase orders for materials, services or facilities; and (iii) terminate all subcontracts to the extent that they relate to the work terminated.
16. INTELLECTUAL PROPERTY RIGHTS. Supplier agrees that, where it undertakes, whether alone or jointly with Buyer, any research, development and/or design activities relating to Products 1) as requested by Buyer in connection with any Purchase Order and/or 2) using or derived from Confidential Information provided by Buyer, Buyer shall own all rights in any resulting intellectual property. Supplier agrees to promptly disclose to Buyer such intellectual property and hereby irrevocably transfers, conveys and assigns to Buyer all of its worldwide right, title, and interest in and to such intellectual property. Buyer shall have the exclusive right to apply for or register any patents, mask work rights, copyrights, and such other proprietary protections, with respect to such intellectual property, on a worldwide basis, and to require the incorporation of such intellectual property into the Products at no additional charge. Supplier shall execute such documents, render such assistance, and take such other actions as Buyer may reasonably request to apply for, register, perfect, confirm, and protect Buyer’s intellectual property rights under this section. Supplier shall be solely responsible for any compensation payable, by law or by contract, if any, to individual inventors of Supplier. Supplier hereby further assigns to Buyer, and at no cost to Buyer, any and all intellectual property rights in and to the designs for any product purchased from Supplier by Buyer under the terms of a Purchase Order, (which intellectual property rights include, without limitation, copyright, trademark, patent, trade secret or otherwise and arising by statute, registration and common law, (collectively “Intellectual Property Rights”). Supplier further agrees and shall require its contractors and agents to agree, to execute all documentation reasonably required by Buyer to evidence the foregoing assignment of Intellectual Property Rights to Buyer as the sole and absolute owner thereof. Supplier further acknowledges and warrants that Supplier is an independent contractor of Buyer and that all product designs and intellectual property associated therewith shall be a “work for hire” and shall be the sole and absolute property of the Buyer, without claim from Supplier or Supplier’s agents, contractors or employees.