Standard Terms and Conditions
Standard Terms and Conditions of Supply
1. THE CONTRACT
The following terms, together with (a) such terms as are set forth on the face of Supplier’s Confirmation Order, and (b) such additional terms as are approved in writing by Supplier, shall constitute the entire contract between Supplier and Buyer. A contract is only finalized upon execution by the parties of a Confirmation of Order and the receipt by Supplier of any required down payment. Acceptance of an order by Supplier is made on the condition that all requirements imposed on Buyer as stated here and elsewhere are fulfilled. Any conduct by Buyer which recognizes the existence of a contract pertaining to the subject matter hereof, including, but not limited to, Buyer’s acceptance of delivery of the goods described in the Confirmation of Order shall constitute Buyer’s acceptance of all these General Terms and Conditions of Supply. Any inconsistent or additional terms contained in the Buyer’s purchase order are hereby rejected.
2. TECHNICAL DOCUMENTS
Technical documents, furnished by Supplier to Buyer, such as drawings, descriptions, illustrations, designs and the like, shall be deemed provided to Buyer on a confidential basis, shall remain Supplier’s exclusive property and shall not be copied, reproduced or communicated to a third party in any way whatever. Information in technical documents shall serve as an approximate indicator only unless otherwise agreed in writing. Supplier reserves all copyright and other intellectual property rights with respect to all drawings, plans and other data. SUPPLIER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO CLAIMS OF INFRINGEMENT MADE BY THIRD PARTIES AND ARISING FROM TRADEMARK, PATENT, OR OTHER PROPERTY RIGHTS IN THE GOODS OR PRODUCTS. Buyer understands and agrees that Supplier does not warrant that the goods or products are free of the rightful claim of any third person by way of infringement or the like.
3. PRICE
Except as may be specifically provided on the face of Supplier’s Confirmation of Order or as may otherwise be agreed upon in writing by Supplier and Buyer, the price stated on the face of Supplier’s Confirmation of Order is based on US Dollars, [Ex Works] Supplier’s premises at 101 Power Boulevard, Archbald PA 18403, net without any deductions whatsoever. All additional costs, including (but not limited to) charges for freight, packing, carriage, insurance, customs duties, fees for export, transit, import and such other permits and certificates as may be necessary, shall be borne by Buyer. If charges for packing, freight, carriage, insurance, customs duties or other additional costs are separately stated on the face of Supplier’s Confirmation of Order and included in the price stated thereon, Supplier reserves the right to adjust its price should the costs on which such additional charges are based be modified. Further, Supplier’s prices are based on presently valid raw material prices and in the case of changes at the time of manufacturing causing an increase in such prices Supplier reserves the right to modify pricing stated on the Supplier’s Confirmation of Order as necessary. As collateral security for the payment of the purchase price of the goods, Buyer hereby grants to Supplier a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing until the full purchase price is paid in full. Buyer hereby authorizes Supplier to file any financing statement or other document that is, or becomes, necessary for Supplier to perfect the security interest granted herein.
4. TAXES
Unless otherwise agreed in writing, Supplier’s prices are exclusive of any federal, state or local property, license, privilege, sales, use, excise, gross receipts or other like taxes which may now or hereafter be applicable to, measured by or imposed upon or with respect to the transaction, the goods, its sale, its value or its use, or any services performed in connection therewith.
5. TERMS OF PAYMENT
Except as otherwise provided on the face of Supplier’s Confirmation of Order or as may otherwise be agreed upon in writing by the parties, payment shall be made by check, wire or swift transfer and shall be due net 30 days from date of invoice. Check payments shall be sent as directed by the Supplier in US Dollars. Wire and swift transfers can be made directly to Supplier’s bank (contact Supplier for details). If Buyer does not observe the agreed date of payment, Supplier reserves the right to impose interest on overdue amounts from the date(s) due, at a rate 18 per cent per annum or a rate to be determined by Supplier, not exceeding the highest rate permitted by law. Payment of such interest does not release Buyer from its obligation to make payments when due. If, in the judgment of Supplier, the financial condition of Buyer, at any time during the manufacturing period or at the time the goods are ready for shipment, does not justify the continuance of the work to be performed by Supplier hereunder or the terms of payment specified Supplier may require full or partial payment in advance. In the event of Buyer’s bankruptcy or insolvency or in the event any proceeding is brought against Buyer, voluntarily or involuntarily, under the bankruptcy or any insolvency laws, Supplier shall be entitled to cancel any order then outstanding at a time during the period allowed for filing claims against the estate and shall receive reimbursement for its proper cancellation charges and expenses. Supplier’s rights under this contract are cumulative and are in addition to all rights available to it at law or in equity. In no event shall Buyer be entitled to hold back payments due or set off any claims against the purchase price without the prior written consent of Supplier.
6. DELIVERY TIME
The date(s) specified for delivery on Supplier’s Confirmation of Order are approximate and shall be reasonably extended if: (a) information required by Supplier from Buyer to execute the order is not received in a timely manner or if changes which delay delivery are agreed upon by Supplier and Buyer; (b) Supplier is not able to make timely delivery by reason of epidemics, act of civil or military authority, mobilization of armed services, war, riots, strikes, boycotts, picketing, lock-outs or other disturbances, delays caused by common carriers, serious breakdowns, accidents, labor conflicts, delayed or deficient delivery of necessary raw materials or semi-manufactured and manufactured products, official or other measures of whatever kind, transport difficulties, natural catastrophes and acts of God or any other event that impairs Supplier’s ability, despite due care, to deliver the goods; or (c) if Buyer is late in fulfilling its contractual obligations (including, but no limited to failure by Buyer to observe the terms of payment).
7. NON-DELIVERY
(a) The quantity of any installment of goods as recorded by Supplier on dispatch from Supplier's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) Supplier shall not be liable for any non-delivery of goods (even if caused by Supplier's negligence) unless Buyer gives written notice to Supplier of the non-delivery within fifteen (15) days of the date when the goods would in the ordinary course of events have been received.
(c) Any liability of Supplier for non-delivery of the goods shall be limited to replacing the goods within a reasonable time or adjusting the invoice respecting such goods to reflect the actual quantity delivered.
(d) Buyer acknowledges and agrees that the remedies set forth in Section 7 are Buyer's exclusive remedies for any non-delivery of goods pursuant to Supplier’s Confirmation of Order.
8. Quantity
If Supplier delivers to Buyer a quantity of goods of up to five percent (5%) more or less than the quantity set forth in the Supplier’s Confirmation of Order, Buyer shall not be entitled to object to or reject the goods or any portion of them by reason of the surplus or shortfall and shall pay for such goods the price set forth in the Supplier’s Confirmation of Order adjusted pro rata.
9. Buyer Cancellation
(a) Any alterations, modifications, or cancellations to an order must be reflected on a new or revised purchase order, submitted by Buyer and approved by Supplier in writing prior to production.
(b) Subject to approval under Section 9(a) above, if Buyer cancels an order for any reason, Supplier reserves the right, in addition to whatever rights Supplier may otherwise have, to charge the Buyer for all material and supplies, either in process or in stock, purchased or made by Supplier before the start of production of the order, work in process and products completed prior to the date of cancellation.
10. Risk of Loss
Risk of loss of or damage to the goods shall pass from Supplier to Buyer upon delivery of the goods at the [Ex Works] Supplier’s premises at 101 Power Boulevard, Archbald PA 18403, regardless of whether title has passed to Buyer or transport is arranged or supervised by Supplier.
11. Limited Warranty
Supplier hereby warrants that the goods shall, for a period of [12 months], be free from defects in material and workmanship. Supplier’s sole warranty obligation shall be the repair or replacement of any defective product. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE FOR THE PURPOSE INTENDED), WHETHER WRITTEN OR ORAL OR IMPLIED IN FACT OR IN LAW, AND WHETHER BASED ON STATUTE, WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT) OR OTHERWISE. SUPPLIER’S WARRANTIES HEREIN RUN ONLY TO BUYER, AND ARE NOT EXTENDED TO ANY THIRD PARTIES WHICH, FOR THE AVOIDANCE OF DOUBT, INCLUDE ANY CUSTOMERS, AGENTS OR RESELLERS OF THE GOODS. SUPPLIER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF ITS PRODUCTS. The warranty given under this section shall not apply to (i) any products which have been subjected to misuse, misapplication or neglect, damaged by accident, rendered defective by reason of improper installation, not used as recommended and in accordance with approved installation and operating practices or rendered defective by the performance of repairs or alterations outside of Supplier’s plant, except when performed under Supplier’s specific authority; (ii) any products furnished or solicited by Buyer or acquired from others at Buyer’s request and/or Buyer’s specifications; (iii) any components not manufactured by Supplier which are attached to, incorporated in or otherwise made a part of Supplier’s products; and (iv) defects resulting from damage due to corrosive, abrasive, or other wear not normally to be expected in the products involved. Before using a Supplier product, Buyer, customers and other users should make their own independent determination that (a) the product is suitable for the intended use; and (b) they can use the product safely and legally. If any model, sample, brochure, advertisement or promotional material was shown to Buyer, such model, sample, brochure, advertisement or promotional material was illustrative in purpose and shall in no way constitute a representation of warranty by Supplier. Any information in technical documents shall serve as an approximate indicator only and shall not constitute a representation or warranty by Supplier.
12. LIMITATION OF LIABILITY
SUPPLIER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, DAMAGE OR LOSS OF OTHER PROPERTY OR GOODS OR COST OF CAPITAL WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT), STRICT LIABILITY OR OTHERWISE. THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE, AND SUPPLIER’S LIABILITY WITH RESPECT TO ANY CONTRACT OR SALE OR ANYTHING DONE IN CONNECTION THEREWITH, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY, OR OTHERWISE, SHALL NOT EXCEED THE COST OF THE GOODS OR PART ON WHICH SUCH LIABILITY IS BASED.
13. Indemnification
Buyer shall defend, indemnify and hold harmless Supplier and its affiliates, directors, officers, agents, servants, employees, successors and assigns against, and hold them harmless from and against and pay on behalf of or reimburse any and all claims, demands, actions, causes of action, suits, obligations, liabilities, losses, damages, deficiencies, expenses, judgments, settlements and compromises (whether or not arising out of third-party claims), including, without limitation: (a) costs associated with a recall of any product into which Supplier’s products are incorporated; (b) Buyer’s failure to specify to Supplier any requirements that are required to be passed through to Supplier pertaining to a product into which Supplier’s products are incorporated; and (c) for bodily injury, death, property damage, or economic loss, as well as any and all costs and expenses, including interest, penalties, reasonable attorneys’ fees, court costs, amounts paid in investigation, defense or settlement, and all indirect, special, incidental, consequential or punitive damages, relating to, resulting from or arising out of acts or omissions of Buyer relating to or arising out of the use, operation, ownership or condition of any of the products purchased by Buyer or the breach or non-performance of Buyer’s obligations under these General Terms and Conditions of Supply.
14. Severability
All provisions of these General Conditions are severable and shall be interpreted and enforced as if all completely invalid or unenforceable provisions were not contained therein and partially valid and enforceable provisions shall be enforced to the extent valid and enforceable.
15. Governing Law and Jurisdiction
These General Conditions and the relationship of the parties shall be governed by the internal laws of the Commonwealth of Pennsylvania without regard to the conflicts of law provisions of any state. The parties specifically waive any application of the U.N. Conventional on Contracts for the International Sale of Goods. Buyer hereby agrees to submit to the personal and exclusive jurisdiction of the federal and state courts located in the Commonwealth of Pennsylvania for purposes of all legal proceedings arising out of or relating to these General Terms. Supplier reserves its rights to enforce these General Conditions in any other court of competent jurisdiction.
16. Miscellaneous
(a) All shipping terms shall have meaning set forth in the Uniform Commercial Code for domestic sales or in INCOTERMS™ 2010, as published by the International Chamber of Commerce, for international sales. Freight terms are as shown on the Supplier’s Confirmation of Order.
(b) No salesperson, agent, or employee of Supplier has authority to make any representation, promise or agreement inconsistent with the provisions hereof.
(c) All of these General Terms and Conditions of Supply will apply unless expressly noted as otherwise on the Supplier’s Confirmation of Order.
Revised: November, 2021
Standard Terms and Conditions of Purchase
1. THE CONTRACT
Unless otherwise provided in a written agreement between Simona America Industries, LLC, a Delaware limited liability company (“Simona”) and the seller (“Seller”), the terms and conditions set forth in this document are intended to establish standard terms and conditions of purchase for all purchases of all Products and Work by Simona from Seller, and all such purchases are made expressly conditional upon these terms and conditions. For purposes of this Agreement: (a) “Products” mean all materials, equipment, supplies and other goods intended for Seller to provide under this Agreement; and (b) “Work” means all services, labor, data, and other obligations intended for Seller to perform or supply under this Agreement, as specified in the work scope, together with miscellaneous expendable job supplies, installation related equipment, tools, transportation, and facilities necessary for the performance of Seller’s obligations under this Agreement. This document, together with the purchase orders, specifications, and all supplements and attachments thereto issued by Simona from time to time, shall constitute the entire agreement (“Agreement”) between Simona and Seller for each such purchase. In the event of any inconsistency between these terms and conditions of purchase and the provisions on the purchase order or on any supplement attached thereto, the provisions contained on the purchase order or on such supplement shall control. Seller’s acknowledgement, commencement of performance to furnish the Products or any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Seller of the Agreement and all of its terms and conditions. When accepted by Seller this Agreement shall constitute a binding contract between Simona and Seller containing the terms and conditions set forth herein. Additional or different terms provided in Seller’s acceptance of Simona’s offer which vary in any degree from any of the terms herein are hereby objected to and rejected.
2. WARRANTIES AND INSPECTION
Seller expressly warrants: (a) that the Products sold hereunder will conform to contract specifications, drawings, samples, or other descriptions furnished to Simona by Seller, and will be of good design, material, and workmanship, free from defect, merchantable, and will satisfactorily perform the functions for which intended and fit for their intended use, and will be free and clear of all liens, claims, pledges, charges and encumbrances; and (b) to perform the Work in a good and workmanlike manner, and in accordance with good industry practices. Seller shall furnish all materials, equipment, tools, labor, supervision, supplies, facilities, services and transportation necessary for the successful completion of the Work. Seller shall cooperate, consult, and coordinate with Simona in the performance of the Work, and shall provide such Work in a timely manner compatible with Simona's schedule. Seller shall, prior to the start of the Work, provide to Simona a schedule describing its plan of operation for the Work and all testing and deliverables of Seller hereunder. Said warranties, however, shall not be deemed to limit any warranties or representations of additional scope given to Simona from Seller or any warranties implied by law. Seller agrees that all of its warranties shall survive acceptance of and payment for the Products and/or Work and shall inure to the benefit of Simona, and to all subsequent buyers of the Products or users of the Work. Unless otherwise specified, all Products and Work will be subject to final inspection and acceptance at Simona’s plant. Payment by Simona prior to final inspection and acceptance shall not constitute acceptance. Simona may at its option hold rejected Products for Seller’s instructions and at Seller’s risk, or return them to Seller at Seller’s expense. If any Products or Work do not comply with the warranties set forth in this paragraph 2, Simona may, at its sole option, and in each case at Seller’s sole expense: (i) reject such Products or Work; (ii) require Seller to repair or correct such Products or Work as necessary to render them in conformance with the foregoing warranties, and consistent with Simona’s time schedule; (iii) return such Products or Work and receive a full refund of the contract price; or (iv) make any corrections required to cause such Products or Work to fulfill the foregoing warranties and charge Seller for the costs incurred by Simona thereby. Seller shall reimburse Simona for all expenses reasonably incurred by Simona in connection with a breach of the foregoing warranties (including transportation, storage, administrative, and other incidental expenses of Simona). No replacement of rejected Products or Work may be made by Seller without written authorization from Simona. The remedies set forth in this Agreement are cumulative, and shall not preclude any other remedy available to Simona at law or in equity.
3. PACKING AND SHIPMENTS
No charge will be allowed for packing or shipping unless designated by Simona on the purchase order. Shipments will be packaged to secure the lowest transportation costs. Bills of lading must accompany each invoice. Orders not accompanied by packing lists will be conclusively deemed in the amount of Simona’s count or weight. If Seller’s deliveries are behind the agreed upon schedule, Simona may elect to have further deliveries made by express shipments and Seller shall bear the difference between freight and express shipping rates. In the event of failure to deliver material of the quality or within the time specified, Simona may buy elsewhere and charge Seller with the resulting loss, unless deferred shipment is agreed upon in writing. Failure of Simona to exercise this option with respect to any installment shall not be deemed a waiver with respect to future installments, if any. Unless otherwise stipulated on the face of a purchase order or by Simona in writing domestic orders shall be priced and shipped “FOB destination,” and international orders shall be priced and shipped “DDP destination.” Risk of loss and title to the Products and Work shall pass to Simona only upon delivery to Simona’s specified end destination. All shipping terms shall have meaning set forth in the Uniform Commercial Code for domestic sales or in INCOTERMS™ 2010, as published by the International Chamber of Commerce, for international sales.
4. CHANGES
Simona shall have the right at any time before completion of an order to make changes in quantities, in drawings and specifications, in delivery schedules, and methods of shipment and packages. If such changes cause an increase or decrease in price or in the time required for performance, Seller shall notify Simona thereof within ten (10) days from the date of notification of the change and an equitable adjustment shall thereupon be negotiated. Changes shall not be binding upon Simona unless evidenced by a purchase order change notice issued and signed by Simona.
5. CANCELLATION
Simona may cancel an order in whole or in part: (a) on account of defects in the Products or Work furnished hereunder; (b) if the Products or Work are not delivered within the time stated in the order; (c) if Seller makes an assignment for the benefit of creditors or a receiver is appointed for Seller; (d) if proceedings in bankruptcy or for corporate reorganization are filed by or against Seller; or (e) upon Seller’s failure to comply with any of the terms and conditions of the Agreement.
6. PRICES, INVOICES AND STATEMENTS
The contract price or unit prices stated in the purchase order represent the fixed, full amount payable by Simona under this Agreement. Unless otherwise specified in the purchase order, no additional charge will be allowed for labor, supervision, equipment, materials, supplies, tools, field and office overhead, facilities, utilities, services, transportation, packaging, cartage, and any other of Seller's costs. Seller warrants that its prices hereunder are no higher than prices charged by it for the same or similar items and quantities to any other buyer. Simona shall have the right, at its own expense, upon reasonable notice and at reasonable times, to examine and audit and to obtain copies of the relevant portion of the books, records, and telephone recordings of Seller to the extent reasonably necessary to verify the accuracy of any statement, charge, payment, or computation made under this Agreement. Seller shall keep records of all charges, disbursements, and expenses incurred by it hereunder, and its compliance with laws regulating employee benefits, quality assurance, environmental and safety activities. All invoices received after the 25th of any month will be audited and considered for payment with invoices of the month following. Payment of invoices to obtain discounts shall not constitute a release of Seller from any of Seller’s obligations hereunder. Any discount terms provided herein shall date from either the date of delivery at destination or the date of mailing of invoice, whichever is later.
7. TAXES
Seller agrees that, unless otherwise indicated herein: (a) the prices herein do not include any state or local sales, use or other duty or tax from which an exemption is available for purposes hereof, and (b) the prices herein include all other applicable federal, state and local taxes in effect at the date hereof. Seller agrees to accept and use tax exemption certificates when furnished by Simona. Federal Excise Tax, if applicable, must be shown separately on invoice.
8. SIMONA's USE
Simona, its successors and assigns, may subject all Products or Work to further manufacture, may combine them with other articles, or sell or put them to any use whatsoever, and no claim for royalties or additional compensation may be made by Seller or anyone also by reason of such manufacture, combination, sale or use. All unpatented ideas, information, designs, devices, prints, drawings and technical data concerning Seller’s products, methods or manufacturing processes which Seller discloses or furnishes to Simona in connection with this order shall, except only to the extent as may be otherwise specifically agreed in writing by Simona and Seller, be deemed to have been disclosed or furnished as part of the consideration for this order, and Seller agrees not to assert any claims by reason of Simona’s use, duplication or disclosure thereof.
9. PATENTS AND PROPRIETARY INFORMATION
Seller warrants that the Products and Work, and the normal use thereof, do not infringe or misappropriate any patent, copyright, trademark, service mark, trade secret, or other intellectual property right of any third party. Seller shall defend, indemnify and hold Simona, its successors and assigns, harmless from and against any and all actions, claims, liability, costs, damage or expense, including attorneys’ fees and other expenses of defense with respect to any claim of patent infringement or the infringement of any proprietary information of third parties arising out of the manufacture, use or sale of the Products or Work called for by this Agreement, provided that this provision shall not apply if any such claim relates to specifications or information furnished to Seller by Simona.
10. CONFIDENTIAL INFORMATION
All disclosures, drawings, specifications, patterns or technical information furnished to Seller by Simona are the sole property of Simona and are submitted in confidence upon the understanding and agreement by Seller that they (a) shall not be disclosed or furnished to any third party; (b) shall not be used by Seller in whole or in part for any purpose not designated by Simona; and (c) shall be returned to Simona immediately upon Simona’s request. Furthermore, Seller shall make no announcements concerning the fact that Seller has contracted to supply any Products or Work for Simona without the prior written permission of Simona.
11. SIMONA'S PROPERTY
All tools, equipment or materials furnished to Seller by Simona shall be and remain the personal property of Simona, and whenever practicable, shall be plainly marked by Seller as the property of Simona and shall be safely stored separately and apart from Seller’s property. Simona’s property while in Seller’s custody shall be held at Seller’s risk, shall be insured by Seller at Seller’s expense in amounts equal to replacement costs with loss payable to Simona and shall be subject to removal at Simona’s request. Samples provided by Simona to Seller will not be analyzed, deconstructed, re-engineered by or disclosed to any third party, nor incorporated into any product that is commercially used or offered for sale, without explicit prior written permission of Simona, and at Simona’s request, any samples not consumed by Seller to fulfil its obligations under the Agreement shall be destroyed or returned to Simona.
12. INDEMNIFICATION
Seller shall indemnify, defend, and hold harmless Simona, its subsidiaries and affiliates, and their respective agents, employees, successors, assigns, and indemnitees (the “Indemnified Parties”), from and against any and all losses, costs, damages, claims, liabilities, fines, penalties, and expenses (including, without limitation, attorneys’ and other professional fees and expenses, and court costs, incurred in connection with the investigation, defense, and settlement of any claim asserted against any Indemnified Party or the enforcement of Seller’s obligations under this paragraph 12) (collectively, “Losses”), which any of the Indemnified Parties may suffer or incur in whole or in part arising out of the Products or the Work, the presence of Seller at Simona’s premises, or the actions or omissions of Seller under this Agreement, including, without limitation, Losses relating to: (a) actual or alleged bodily or mental injury to or death of any person, including, without limitation, any person employed by Simona or by Seller; (b) damage to or loss of use of property of Simona, Seller, or any third party; (c) any contractual liability owed by Simona to any third party; (d) any breach of or inaccuracy in the covenants, representations, and warranties made by Seller under this Agreement; (e) the use or sale of the Products or Work called for by this Agreement by Simona or its customers; and/or (f) any violation by Seller of any ordinance, regulation, rule or law of the United States or any political subdivision or duly constituted public authority; provided, however, that Seller’s indemnity obligations under this paragraph shall not apply to any Losses to the extent initiated or proximately caused by or resulting from the sole or concurrent gross negligence or willful misconduct of any of the Indemnified Parties. Seller, for itself, its successors and assigns, hereby expressly agrees to waive any provision of any workers’ compensation act or other similar law whereby Seller could preclude its joinder by Simona as an additional defendant, or avoid liability for damages, contribution, or indemnity in any legal action brought against any Indemnified Party. Seller’s obligation to Simona herein shall not be limited by any limitation on the amount or type of damages, benefits or compensation payable by or for Seller under any worker’s compensation acts, disability benefit acts, or other employee benefit acts on account of claims against Simona by an employee of Seller or anyone employed directly or indirectly by Seller or anyone for whose acts Seller may be liable.
13. SERVICES ON SIMONA’S PREMISES
If Seller, its employees, agents or subcontractors are to furnish any labor or services of any kind whatsoever on Simona’s premises in connection with this Agreement: (a) Seller agrees to abide by Simona’s rules and regulations governing contractors and suppliers while working on or maintaining facilities on Simona’s premises, copies of which will be furnished on request; (b) Seller shall, before starting work, furnish Simona with certificates from insurance carriers of Seller and Seller’s subcontractors (if any) that policies of insurance have been issued covering their legal liability under (i) applicable workmen’s compensation and occupational disease laws; (ii) public liability insurance with limits of $100,000/$300,000 for bodily injury or death and $100,000/$300,000 for property damage, including loss of use thereof; (iii) contractual liability insurance covering the indemnification set forth in paragraph 12 hereof, and (iv) motor vehicle liability insurance with limits of $100,000/$300,000 for bodily injury or death and $50,000 for property damage, including loss of use thereof; (c) Seller’s experts or employees shall not thereby be deemed to be the agents or employees of Simona. Seller will undertake to keep the materials and premises involved free from any lien whatever for materials and labor incident to the performance of Seller’s obligations hereunder. If Seller furnishes material and services for construction and improvement of realty and the installation of personality for a lump sum amount, Seller agrees to furnish an analysis thereof as Simona may reasonably require for accounting purposes. Seller shall be solely responsible for material furnished by Simona on other than a charge basis in connection with this order.
14. COMPLIANCE WITH LAWS AND REGULATIONS
Seller agrees that it will comply with all federal, state and local laws and regulations applicable to the production, sale and delivery of the Products or the furnishings or any labor or services called for by this Agreement, and any provisions required thereby to be included herein shall be deemed to be incorporated herein by reference. Without limiting the generality of the foregoing, Seller certifies that (a) the Products or Work called for by this order have been or will be produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and a certification evidencing such compliance shall be printed, stamped or typed on Seller’s invoices; (b) all Products or Work furnished under this Agreement will conform to and comply with the Occupational Safety and Health Act of 1970 and the standards and regulations issued thereunder; and (c) Seller’s performance of its obligations under this Agreement shall be in compliance with the United States Foreign Corrupt Practices Act, the Arms Export Control Act, the International Traffic in Arms Regulations, the Export Administration Act and the Export Administration Regulations, including the requirement for obtaining any export license or agreement. Seller shall furnish Simona with certificates of compliance, where required under such applicable laws or when requested by Simona. Each invoice rendered to Simona under this Agreement shall constitute written assurance by Seller that Seller has fully complied with all applicable laws.
15. WITHHOLDING
If Simona has a claim under this Agreement, or under any other agreement between Simona and Seller, regardless of when it is discovered, including a claim that: (a) Seller's invoice is erroneous; (b) the Products or Work are deficient, defective, or incomplete; (c) a third party claim has been asserted or there is reasonable evidence indicating the possibility of a claim; or (d) Simona, another contractor, or other party suffers damage or injury which is attributable to Seller; then Simona may, without notice, withhold payment of, or set off the amount of its claim, costs or loss against, any amount invoiced to it.
16. ASSIGNMENT
Except as otherwise expressly provided herein, neither this Agreement nor any interest hereunder shall be assignable by Seller without the prior written consent of Simona, which may be withheld at Simona’s sole discretion.
17. WAIVER
No waiver of a breach of any provision of this Agreement shall be effective to discharge in whole or in part any claim or right arising out of such breach unless such waiver is in writing and signed by Simona.
18. TIME OF THE ESSENCE
Time is of the essence for this Agreement. Failure to tender conforming Products or Work by the delivery date specified herein shall constitute a breach by Seller, and Seller shall have no right to make a later conforming tender except upon prior written authorization of Simona.
19. FORCE MAJEURE
Strikes, fires, litigations, accidents or other causes beyond the control of Simona, which shall affect Simona’s ability to receive and use the Products, shall constitute valid grounds for suspension of shipment upon this order, upon notification to Seller by telegram or letter, and without penalty to Simona except that cancellation for such causes may not be made without reimbursement to Seller for expenditures actually made for labor and materials upon the authority of this order.
20. GOVERNING LAW
This Agreement is to be construed in accordance with the laws of the State of Delaware, without regard to conflict of laws rules thereof. The parties hereby expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Products, if the same would otherwise apply here.
21. JURISDICTION
Simona and Seller agree that any legal suit, action, or proceeding hereunder shall be brought and resolved exclusively by the State and Federal courts located in Lackawanna County, Pennsylvania, and the courts to which an appeal therefrom may be taken; provided that any party shall have the right, to the extent permitted by applicable law, to proceed against any other party or its property in any other location to the extent necessary for the enforcing party to enforce a judgment or other court order. Each of the parties hereby consents to the jurisdiction of such courts and waives all questions of jurisdiction and venue. Legal process in any proceeding may be served on any party anywhere in the world.
22. RELATIONSHIP OF THE PARTIES
In satisfying its obligations hereunder, Seller shall operate as and have the status of an independent contractor, and shall not act as or be an agent or employee of Simona. As an independent contractor, Seller shall be solely responsible for the end result of its work and as such shall maintain daily control over its workers and the means and methods used to accomplish the end result. Seller shall be solely responsible for the employment of workers and shall defend, indemnify and hold Simona harmless from any claim, demand, loss, cost, expense, or suit alleging the violation or claimed violation of any local, state or federal law, rule or regulation relating to the safety and employment of workers, or requiring the employer to withhold taxes or similar charges from employees’ pay. Nothing in this Agreement or in the performance of the Seller’s obligations required hereunder shall be construed to create a partnership, joint venture or joint business arrangement between Simona and Seller.
23. LIMIT OF LIABILITY
IN NO EVENT SHALL SIMONA HAVE ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, FOR ANY PUNITIVE, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL LOSS OR DAMAGE ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDING LOSS OF DATA, PROFITS, INTEREST OR REVENUE OR INTERRUPTION OF BUSINESS, EVEN IF SIMONA HAS BEEN INFORMED OF OR MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
24. SEVERABILITY
In the event that any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision hereof and such illegal, invalid, or unenforceable provision shall be interpreted and modified by the parties so as to eliminate such illegality, invalidity and/or unenforceability.
Revised: November, 2021
