1.1 The purchase by Autonomous Stuff LLC (“AutonomouStuff”) from Supplier of supplies and/or services identified on AutonomouStuff’s purchase order to Supplier (“Goods”) shall be governed by these terms and conditions of purchase and any applicable supplement (“POTCs”), the supply or service agreement executed between the parties (if any), request for quotation, purchase order, statements of work, drawings, specifications, quality supplements, and/or scheduling agreements issued by AutonomouStuff, as well as any provisions incorporated by reference in any of the foregoing, (collectively, “Order”). The term “Supplier” refers to the entities designated as such on a purchase order issued by AutonomouStuff and/or its affiliates.
1.2 Supplier acknowledges that AutonomouStuff is purchasing Goods under circumstances in which timely delivery is required, and that AutonomouStuff is relying upon Supplier’s agreement to timely deliver the Goods to AutonomouStuff at the price, in the quantities and on the other terms and conditions stated in the Order. Accordingly, Supplier may not terminate the Order before expiration or resource the Goods from Supplier to a new supplier in part or in whole.
2 ACCEPTANCE OF PURCHASE ORDER
2.1 Supplier shall be deemed to have accepted the Order upon the earliest of: (i) Supplier commencing work or performance with respect to any part of the Order; (ii) Supplier delivering written acceptance of the purchase order to AutonomouStuff within seven calendar days of the date thereof or the date specified therein, whichever is earlier; or (iii) any conduct by Supplier that fairly recognizes the existence of a contract for the purchase and sale of the Goods. The Order is limited to and conditional upon Supplier’s acceptance of the Order’s terms and conditions. Absent Supplier’s acceptance with the time specified, the Order is automatically withdrawn. AutonomouStuff may rescind the Order at any time prior to Supplier’s acceptance.
2.2 AutonomouStuff hereby expressly objects to any additional, contrary or different terms and conditions contained in any acknowledgment, confirmation, invoice, proposal, shipping documentation, bills of lading or any other form of documentation or communication received from Supplier. No act, omission to act or course of dealing by AutonomouStuff, whether receiving, accepting or paying for any Goods (or part thereof) shall waive the aforementioned provision or constitute an agreement in terms of any contrary, additional or different terms and conditions being applicable to the Order.
2.3 Upon acceptance of the Order, Supplier shall be deemed to have satisfied itself, as to the extent and nature of the Order including, but not limited to: the correctness and sufficiency of the prices specified in the Order; the services, personnel, materials and equipment, plant, consumables and facilities required for the provision of the Goods; and, any and all other matters which could affect the fulfilment of the Order. Any failure by Supplier to take account of matters which could affect its performance under the Order will not relieve Supplier from any of its obligations thereunder.
3 SUPPLIER’S GENERAL OBLIGATIONS
3.1 Supplier will render the Goods to AutonomouStuff strictly on the terms set out in the Order. No deviation from the Order shall be made without AutonomouStuff’s prior written authorization in accordance with Section 11 of these POTCs.
3.2 Supplier shall fulfil the Order in a professional and workmanlike manner, with all due care and diligence, and with all the skills expected of a reputable supplier experienced in providing the types of Goods to be provided under the Order.
3.3 Supplier shall provide all management, supervision, personnel, materials and equipment (except any materials and equipment explicitly referred to within the Order as being provided by AutonomouStuff), plant, consumables, facilities and all other things whether of a temporary or permanent nature and in so far as is necessary to fulfil its obligations under the Order, whether specified in or reasonably to be inferred from the Order.
3.4 Any materials and equipment incorporated into or used in connection with the Goods, for which there is no detailed specification included within the Order, shall be new and unused, of good quality and workmanship, and fit for the intended purpose where a purpose is defined in the Order or where no such purpose is defined, fit for its ordinary purpose. Where no standards or codes of practice are specified within the Order, then all materials and equipment shall be provided by Supplier to AutonomouStuff in accordance with the accepted codes of practice of the industry concerned.
3.5 Supplier shall ensure that its personnel are competent, properly qualified, skilled, speak and write fluent English when required, technically experienced and also trained in all aspects of safety, appropriate to and in accordance with accepted codes of practice of the industry concerned. It shall be the responsibility of Supplier to verify all relevant qualifications of such personnel and provide evidence of the same at AutonomouStuff’s written request.
3.6 In the event that seconded personnel of Supplier become ill and in the opinion of AutonomouStuff such illness prevents progress in fulfilment of the Order, Supplier shall provide suitable replacement personnel at Supplier’s cost as soon as practicable upon notice from AutonomouStuff. No compensation will be paid by AutonomouStuff for periods of absence, leave or sickness, or demobilisation/mobilisation as a result of such illness.
3.7 AutonomouStuff reserves the right to reject any personnel employed by Supplier for the fulfilment of the Order for any reason whatsoever. Such rejection and replacement, if required by AutonomouStuff, shall be executed without delay and at no cost or expense to AutonomouStuff. Personnel provided in connection with the Order shall remain Supplier’s employees at all times and shall not be considered as employees of AutonomouStuff.
3.8 Supplier shall provide, at its own expense, any documentation required by the Order for review and acceptance by AutonomouStuff and/or AutonomouStuff’s customer. The signing of any such documentation by AutonomouStuff shall not be construed as acceptance of any commercial term that may be contained within such documentation. For the avoidance of doubt, the review and acceptance by AutonomouStuff of such documentation shall not relieve Supplier of any of its responsibilities under the Order.
3.9 Supplier shall be responsible for obtaining all authorizations, approvals, permits, licences and the like necessary for the fulfilment of the Order unless otherwise specified therein.
3.10 Where applicable, Supplier shall provide AutonomouStuff, without further charge, office based technical support as part of Supplier’s warranty responsibility.
3.11 Where Supplier utilizes a site owned or controlled by AutonomouStuff or its customer, Supplier shall, upon successful completion of the Order or any part thereof, and without delay, clear and remove all equipment and materials provided by Supplier including debris, thereby leaving the site in a clean, tidy and safe condition.
4.1 Supplier shall fulfil the Order and any part thereof on or before the applicable delivery dates (“Delivery Date(s)”) at the designated place(s) specified within the Order. Time and quantities are of the essence.
4.2 Where the Order is based on progress and/or milestones subject to individual and separate Delivery Dates, Supplier shall monitor, assess and control the physical progress thereof to ensure all `s are met. For the avoidance of doubt, all progression and milestones with a corresponding Delivery Date shall be deemed to be a part of the Order.
4.3 Supplier agrees to 100% on-time delivery of the quantities and at the times specified by AutonomouStuff as provided in the Order. AutonomouStuff is not obligated to accept early deliveries, late deliveries, partial deliveries, excess deliveries or any other delivery that is not a 100% on-time delivery (“Nonconforming Deliveries”). If AutonomouStuff elects in its sole and absolute discretion to accept one or more Nonconforming Deliveries, such acceptance shall not constitute a waiver of AutonomouStuff’s right to reject any other shipment which does not conform to the Order. Supplier agrees to be responsible for any fines imposed on AutonomouStuff by AutonomouStuff’s customers as a result of any Nonconforming Deliveries.
4.4 In the event that it becomes apparent to Supplier that timely delivery of the Goods or any part thereof will not be made in accordance with the Delivery Date, then Supplier must notify AutonomouStuff at the earliest possible opportunity stating extent of the delay, reasons therefor, and details of the actions that shall be undertaken by Supplier to overcome or minimize the delay relating to the delivery.
4.4.1 Without prejudice to Supplier’s obligations under the Order, AutonomouStuff reserves the right to review and accept any actions referred to in Section 4 within Supplier’s notice, or to instruct any appropriate action to be taken at Supplier’s expense in order to meet the delivery date.
4.4.2 AutonomouStuff’s acceptance of Supplier’s notice, or AutonomouStuff’s mitigation of such effects relating to Supplier’s default on any Delivery Date, shall not amount to a waiver of AutonomouStuff’s rights or remedies under the Order or any other remedy which may be available to AutonomouStuff under applicable law.
4.5 In the event that Supplier fails to deliver the Goods in full or in part by the Delivery Date, despite any actions that may have been taken in accordance with Section 4 and/or 4.4.1, then AutonomouStuff may at its sole discretion, either: terminate the Order with immediate effect and Supplier shall indemnify AutonomouStuff, upon receipt of AutonomouStuff’s demand, against any losses, damages, liabilities, claims, costs and expenses (including reasonable attorneys’ fees) incurred by AutonomouStuff, attributable to Supplier’s failure to timely deliver the Goods or any part thereof by the Delivery Date; or, invoke the provisions of Section 4.6.
4.6 If, for any reason other than an event of force majeure as defined in Section 26, Supplier fails to deliver the Goods or any part thereof by the Delivery Date, then AutonomouStuff, by way of liquidated damages, may deduct from the total price payable for the Goods, a daily sum equal to three percent (3%) per day of the total price due to Supplier for the Goods, for each day that any Delivery Date is delayed. Liquidated damages will accrue on a daily basis from the pertinent Delivery Date and will continue to accrue until the date the Goods or the relevant part thereof are delivered and accepted by AutonomouStuff as complete. AutonomouStuff shall notify Supplier of any liquidated damages accrued and thereafter recover such liquidated damages at AutonomouStuff’s sole discretion either: (i) weekly on demand; or (ii) by deduction to or withholding from any subsequent payment otherwise due to Supplier.
4.7 AutonomouStuff may change the delivery rate of previously scheduled shipments or direct temporary suspension of scheduled shipments from time to time in its sole and absolute discretion, neither of which actions shall entitle Supplier to modify Supplier compensation, price or other terms or conditions set forth in the Order except in accordance with Section 11. If, as the result of any of Supplier’s acts or omissions, Supplier is unable to timely meet the Delivery Date using the delivery method specified in the Order and more expeditious methods of transportation for the Goods are available, Supplier shall ship the Goods by a transportation method that will meet AutonomouStuff’s delivery requirements or, if that is not possible, by the most expeditious transportation method possible. In either such case, Supplier shall be solely responsible for any incremental costs due to the more expeditious transportation method.
4.8 AutonomouStuff and Supplier both acknowledge and confirm that any deduction, withholding or compensation referred to in Section 6 is a genuine pre-estimate of loss likely to be suffered by AutonomouStuff as a result of Supplier’s failure to meet any of the specified Delivery Dates and is not a penalty. Furthermore, where AutonomouStuff has opted to invoke Section 4.6, then such liquidated damages shall be the sole and exclusive remedy of AutonomouStuff in respect of Supplier’s failure to meet the applicable Delivery Dates.
5 SHIPPING. Supplier shall comply with any and all instructions on or attached to the Order. Where applicable and to the extent that they do not conflict with the Order, delivery DDP (INCOTERMS® (latest edition)) shall apply to the Order. Supplier shall provide all documentation required therein.
6 TITLE AND RISK
6.1 Title to Goods shall pass to AutonomouStuff either:
6.1.1 upon delivery of the Goods or any part thereof; or
6.1.2 upon payment for the Goods, if payment is made prior to the delivery of the Goods or any part thereof; or
6.1.3 upon AutonomouStuff invoking default and/or termination; or
6.1.4 for designs, drawings, technical information and data, upon commencement of the preparation, production or creation by Supplier in accordance with Section 5.
6.2 Notwithstanding the foregoing, risk of loss or damage to Goods or any part thereof shall remain with Supplier until delivery of the Goods and AutonomouStuff’s acceptance of the same.
6.3 All materials and equipment to be incorporated into the Goods and for which title has passed to AutonomouStuff, shall be clearly marked as AutonomouStuff’s property and where possible shall be stored separately.
7 PRICES. Unless otherwise expressly specified within the Order all prices stated therein shall be deemed to be:
7.1 A firm fixed price for the duration of the Order and not subject to increase for any reason, including but not limited to increased raw material costs, increased labor or other manufacturing costs, increased development costs, currency fluctuations or changes in volumes or program length from those estimated or expected; and
7.2 Fully inclusive of the sole compensation due to Supplier for the fulfilment of the Order including all and any associated costs; and
7.3 Fully inclusive of all taxes (excluding sales tax or VAT referred to in Section 5), duty, levies, contributions and charges of any kind incurred by Supplier relative to the Order; and
7.4 Fully inclusive of all personnel and corporate taxes, payroll burdens, duty and charges of any kind incurred by Supplier or any personnel employed by Supplier relative to the Order; and
7.5 Exclusive of sales tax or VAT which must be shown as a separate cost on invoice; and
7.6 Inclusive of any applicable packing/protection and delivery/shipping of any tools, equipment and materials to the designated place specified in the Order.
8.1 Inspection, acceptance, or payment for the Goods (or any part thereof) shall not be construed as acceptance of nonconforming Goods, acceptance of Supplier’s fulfilment of its contractual obligations in the Order, a waiver of AutonomouStuff’s rights under the Order, or a limitation of any rights or remedies available to AutonomouStuff.
8.2 Except as otherwise specified in the Order, invoices shall be issued by Supplier to AutonomouStuff no earlier than delivery of the Goods to AutonomouStuff. Supplier shall, at its sole expense, comply with AutonomouStuff’s instructions and then current policies with respect to the form, content and method for submission of invoices. Supplier shall promptly submit correct and complete invoices or other agreed upon billing communications with appropriate supporting documentation and other information reasonably required by AutonomouStuff after delivery of Goods. At a minimum, each of Supplier’s invoices shall show separately the individual amounts pertinent to the Goods (or any parts thereof); quote AutonomouStuff’s Order reference number; and, include any additional details as may be specified in the Order. To the extent that payments to be made under the Order result in Value Added Tax (“VAT”) or similar sales tax howsoever described, then Supplier shall issue to AutonomouStuff a proper VAT invoice which shall detail the proper amount of such VAT (or similar sales tax) payable. AutonomouStuff may require Supplier to provide supporting tax payment documentation as may be required by applicable law, which Supplier shall provide to AutonomouStuff within five (5) working days of the date of receipt of such request from AutonomouStuff.
8.3 Unless otherwise stated in the Order, AutonomouStuff shall pay invoices for Goods which are properly presented and not subject to dispute according to the terms stated in the Order. If no terms are stated in the Order, AutonomouStuff shall pay net sixty calendar days, after the later of: (i) the Goods being received and accepted at AutonomouStuff’s facility; or (ii) AutonomouStuff’s receipt of Supplier’s invoice. AutonomouStuff may withhold payment until a correct and complete invoice or other required information is received and verified. If the payment date is not a business day, payment shall be due the next business day thereafter. Payment shall be deemed to occur upon transmittal by AutonomouStuff of any paper draft or AutonomouStuff’s wire transfer of payment into the account of Supplier.
8.4 If AutonomouStuff at any time incurs costs or any bona fide back charge or claim against Supplier under the Order and AutonomouStuff is entitled to recover same from Supplier, then AutonomouStuff may invoice Supplier for such costs. Where payment is due to Supplier in accordance with the Order, then AutonomouStuff at its sole discretion, may deduct any costs, bona fide back charge or claim against Supplier from any amount due, or that may become due to Supplier under the Order. Supplier shall pay any invoices issued pursuant to this Section within thirty calendar days of the date of the invoice(s).
9 LIENS AND CLAIMS. Supplier shall not claim or exercise any lien, attachment, charge, or seek a judgment or award or the like on the Goods or on any property of AutonomouStuff in the possession or control of Supplier. Without prejudice to any other provision, Supplier shall save, indemnify, defend and hold harmless AutonomouStuff from and against all such liens, attachments, charges, judgments, awards or the like which may arise out of or in connection with the Order. Supplier shall immediately notify AutonomouStuff of any possible lien, attachment, charge, judgment, award or the like which may affect the Goods any part thereof. If at any time there is evidence of any lien, attachment, charge, judgment, award or the like to which, if established, AutonomouStuff or its property might be subjected, whether made by any persons against Supplier or made by any sub-suppliers against AutonomouStuff, then Supplier shall fully indemnify AutonomouStuff on demand, against any and all such liens, attachment, charges, judgments, awards or the like. AutonomouStuff shall have the right, at its sole discretion, to withhold and/or set off or otherwise recover from Supplier, such sum of money as will fully indemnify AutonomouStuff against any such liens, attachments, charges, judgments, awards or the like.
10 QUALITY ASSURANCE
10.1 All Goods shall comply with industry standards and/or the requirements set forth in the Order. Supplier shall provide, at its own expense, all quality related documentation, test certificates, inspection reports, test reports, and manuals for review and acceptance by AutonomouStuff as may be required by the Order or law. Supplier and sub-suppliers shall have an implemented and documented system for quality assurance pursuant to the relevant parts of ISO 9001 or equivalent and shall perform the Order in full compliance with such quality system.
10.2 AutonomouStuff and AutonomouStuff’s customer shall have the right to expedite, inspect, witness, or review Supplier’s quality control procedures and the testing/re-testing of the Goods, and audit the performance of Supplier and sub-supplier for compliance with the Order at no additional cost to that specified in the Order. Supplier and sub-supplier shall allow AutonomouStuff and AutonomouStuff’s customer, free of charge, reasonable access to tools, apparatus, materials, facilities and assistance in this respect. Supplier shall furnish to AutonomouStuff the status of engineering, material procurement, production and shipping information upon request.
10.3 During any such auditing of the performance of Supplier sub-supplier and/or any inspection of the Goods after the Delivery Date, AutonomouStuff shall be entitled to reject any part of the Goods that is considered to be defective, or inferior in quality of materials, workmanship, or design and/or not in accordance with the requirements of the Order.
10.4 AutonomouStuff shall be entitled to a reasonable period of time after discovery of a defect or non-conformity in the Goods to reject or revoke acceptance thereof. Supplier shall remove the rejected Goods or parts thereof within 10 calendar days following AutonomouStuff’s rejection notice. Supplier shall then immediately replace, repair, correct or re-perform the rejected part of the Goods or the entire Goods at no cost to AutonomouStuff.
10.5 If defective or nonconforming Goods are rejected by AutonomouStuff, the quantities under the Order shall be correspondingly reduced unless AutonomouStuff otherwise notifies Supplier, and Supplier shall not replace reduced quantities without written notice from AutonomouStuff directing it to do so. Following rejection of nonconforming Goods, Supplier shall in AutonomouStuff’s sole and absolute discretion, without prejudice to any other right or remedy of AutonomouStuff: (i) accept the return, at Supplier’s sole expense, of the Goods and refund to AutonomouStuff the full invoice price plus all transportation and other charges associated with the nonconforming Goods; (ii) replace the non-conforming Goods with conforming Goods, with all associated costs and expenses, other than the original invoice and shipping prices, being borne by Supplier; or (iii) at Supplier’s sole expense, correct at any time prior to shipment from AutonomouStuff’s facility Goods that fail to meet the requirements of the Order.
10.6 Promptly upon learning of defective or nonconforming Goods, Supplier shall develop, document and implement corrective actions designed to ensure that all Goods are produced in accordance with all applicable quality control policies and standards of AutonomouStuff and AutonomouStuff’s customer. Supplier shall immediately notify AutonomouStuff in writing when it becomes aware of any raw material, component, design or defect in AutonomouStuff that is nonconforming or may be or become harmful to persons or property.
11.1 AutonomouStuff reserves the right at any time, by written notice to Supplier, to make changes, or to require Supplier to make changes, to drawings, specifications, sub-suppliers, samples or descriptions of Goods. AutonomouStuff also reserves the right to otherwise change the scope of the work covered by the Order, including work with respect to such matters as inspection, testing or quality control. AutonomouStuff may also require Supplier to source the supply of raw materials either from itself or from specified third parties. Supplier shall promptly make any such requested change.
11.2 In order for Supplier to request a reasonable difference in price or time for performance as a result of a change described in Section 1, Supplier must notify AutonomouStuff of its request in writing within ten calendar days after receiving notice of the change. Supplier shall, if requested by AutonomouStuff, provide additional documentation relating to any change in specifications, price or time for performance. After receiving all requested documentation, AutonomouStuff, in consultation with Supplier, may equitably adjust the price or time for performance. If Supplier does not provide timely notice to AutonomouStuff that a requested change may result in a difference in price or time for performance, AutonomouStuff’s requested change shall not affect the price or time for performance.
11.3 Supplier shall not make any change relating to Goods, including without limitation, in the Goods’ contents, design, specifications, processing, packing, marking, shipping, price or date or place of delivery, except at AutonomouStuff’s written instruction or with AutonomouStuff’s prior written approval.
11.4 In connection with Supplier’s fulfilment of the Order, Supplier may not change or alter in any manner: (i) any third party sub-supplier to Supplier; (ii) any facility from which Supplier and/or any such third party supplier operates; (iii) the price of any Goods covered by the Order; (iv) the nature, type or quality of any services, raw materials or supplies used by Supplier or its sub-suppliers in connection with the Order; (v) the fit, form, function, appearance or performance of any Goods covered by the Order; or (vi) the production method, or any process or software, or any production equipment used in the production or provision of, or as part of, any Goods under the Order. Supplier acknowledges that any change in the Goods from the approved level may materially and detrimentally affect the functionality of AutonomouStuff’s products which incorporate the Goods and may also affect the safe or required operation of AutonomouStuff’s products used with the Goods or in which the Goods are incorporated. Accordingly, in addition to a breach of the Order, Supplier agrees that the potential harm of altering the Goods in any manner described above constitutes irreparable injury and that AutonomouStuff is entitled to a preliminary injunction prohibiting any deviation from the Order.
12 WARRANTY AND DEFECTS CORRECTION
12.1 In addition to any other express or implied warranties provided by law or otherwise, Supplier warrants to AutonomouStuff, AutonomouStuff’s customer and their respective customers, successors and assigns that the Goods when delivered to AutonomouStuff shall: (i) be new and conform in all respects to the Order and to all specifications, drawings, quality supplement(s), samples and other descriptions furnished by AutonomouStuff or otherwise obtained by Supplier; (ii) be merchantable and free from all defects in design, workmanship and/or materials and be of highest quality and workmanship; (iii) be selected, designed, manufactured, assembled and packaged by Supplier based upon AutonomouStuff’s stated use and be fit and sufficient for the specific purposes intended by AutonomouStuff as evidenced in the Order and in the drawings and specifications; (iv) conform to all applicable laws in countries where the Goods are to be sold or used; (v) for all Goods which consist of services, Supplier further warrants that its work shall be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed to with AutonomouStuff and otherwise consistent with the highest industry standards.
12.2 All warranties of Supplier extend to future performance of the Goods and are not modified, waived or discharged by delivery, inspection, tests, acceptance and/or payment. AutonomouStuff’s approval of any design, drawing, material, process or specifications shall not relieve Supplier of these warranties. Supplier waives any right to notice of breach. The warranties in this Section 12 are intended to and shall provide AutonomouStuff with protection from any and all warranty claims brought against AutonomouStuff by AutonomouStuff’s customer and their respective customers, successors and assigns, relating in any manner to the Goods.
12.3 The warranty period shall run to the latest of the following: (i) 18 months from the date AutonomouStuff accepts the Goods; (ii) the warranty period provided by applicable law; (iii) the warranty period offered by AutonomouStuff to AutonomouStuff’s customer; or (iv) the warranty period AutonomouStuff’s customer offers to end-users of the products or for the products into which the Goods are incorporated.
12.4 At AutonomouStuff’s request, Supplier shall fully participate in any root cause investigation or analysis conducted by AutonomouStuff and/or AutonomouStuff’s customer relating in any manner to the failure of the Goods and provide all information requested by AutonomouStuff concerning the Goods. In the event that the root cause analysis of a warranty failure is inconclusive but implicates the Goods, the extent of Supplier’s liability shall be based upon a good faith allocation by AutonomouStuff of the responsibility for the warranty failure.
12.5 In the event that AutonomouStuff or AutonomouStuff’s customer voluntarily or pursuant to a government mandate, makes an offer to end-users to provide remedial action to address a defect or nonconforming condition of the Goods or any of AutonomouStuff’s goods incorporating the Goods, in connection with a recall campaign, service action or other corrective action (“Remedial Action”), the warranty shall continue for such time period as may be dictated by AutonomouStuff’s customer or the government unit.
12.6 Where applicable, AutonomouStuff shall have the right to assign the benefits of this warranty described herein to its affiliates, its successors or assigns.
12.7 AutonomouStuff shall notify Supplier as soon as is reasonably practicable of any breach of the warranty or of any defects in the Goods. AutonomouStuff may instruct Supplier to correct the design, re-perform, replace and/or repair the defective Goods. Correction of the defective Goods by Supplier shall be without cost to AutonomouStuff.
12.8 Where Supplier fails to promptly remedy the defective Goods by the date stipulated in AutonomouStuff’s notice to Supplier of a breach of warranty, or where AutonomouStuff decides, at its sole discretion, that Supplier’s correction of defects may be prejudicial to its interests, then AutonomouStuff shall arrange for the correction of the defective Goods by a third party at Supplier’s expense. Supplier shall be liable for and shall fully reimburse AutonomouStuff on demand for any and all reasonable costs incurred by AutonomouStuff in connection with the removal, correction, replacement and/or re-performance of the defective Goods, including any associated transportation costs.
12.9 Neither failure on the part of AutonomouStuff, its affiliates or its customer to inspect, witness or test the Goods, nor any failure of AutonomouStuff, its affiliates or its customer to discover defects or reject the Goods, shall relieve Supplier from any liability or obligation under the Order.
13.1 AutonomouStuff may, at any time and at its sole discretion, suspend the provision of all or any part of the Goods by giving written notice to Supplier. Such suspension shall not in any way invalidate the Order. Upon receipt of such notice, Supplier shall discontinue the provision of the Goods or any part thereof as detailed within the notice upon the date and to the extent specified. Supplier shall properly secure and protect the Goods as required by AutonomouStuff.
13.2 Supplier shall use its best efforts to minimize and mitigate costs associated with AutonomouStuff’s suspension of the Order and, when requested by AutonomouStuff, shall immediately resume the performance of the Order. AutonomouStuff will grant no compensation or extension of time for any suspension that might result from an action or default caused by Supplier.
14.1 AutonomouStuff shall have the right to terminate all or any part of the Order for Cause upon written notice or such other date specified by AutonomouStuff in writing. Prior to termination of the Order under this Section, AutonomouStuff shall have the option at its sole discretion but not the obligation to give notice to Supplier of its default and request Supplier to cure the default. Should Supplier fail to comply with such notice or fail to agree with AutonomouStuff on alternative remedies within seven calendar days of the notice (“Grace Period”), then AutonomouStuff may declare Supplier to be in default pursuant to this Section 1 following the expiration of the Grace Period. “Cause” for termination includes the following actions: (i) Supplier fails to deliver or threatens not to deliver the Goods; (ii) Supplier fails to meet applicable quality requirements so as to endanger timely and proper performance of the Order; (iii) Supplier breaches any other representation, warranty or term of the Order; (iv) Supplier repudiates or threatens to breach any of the terms of the Order; (v) Supplier makes an assignment for the benefit of creditors; (vi) proceedings in bankruptcy or insolvency are instituted by or against Supplier; (vii) Supplier requests accommodations from AutonomouStuff, financial or otherwise, in order for Supplier to meet its obligations under the Order; (viii) Supplier enters or offers to enter into a transaction or series of transactions that would cause a sale of a material portion of the assets used by Supplier for the production and/or provision of Goods to AutonomouStuff; (ix) Supplier enters or offers to enter into a merger, sale or exchange of stock or other equity interests that would result in a change in control of Supplier within the meaning of Section 409A of the Internal Revenue Code and regulations issued there under, in which case Supplier shall notify AutonomouStuff within 10 calendar days after entering into any related negotiations (or the first period in which such negotiations can be made public consistent with applicable law) that could lead to such a transaction, provided that upon Supplier’s request, AutonomouStuff shall enter into an appropriate nondisclosure agreement related to information disclosed to AutonomouStuff in relation to such transaction; or (x) at any time in AutonomouStuff’s sole judgment, Supplier’s financial or other condition or progress on the Order shall be such as to endanger timely performance. In the event AutonomouStuff elects not to terminate the Order in connection with an event that would constitute Cause for termination, AutonomouStuff may make such equitable adjustments under the Order, including the price, payment terms, and delivery requirements, as AutonomouStuff deems appropriate to address changes in Supplier’s circumstances, including Supplier’s continuing ability to perform its obligations regarding warranty, nonconforming Goods or other requirements, provided that AutonomouStuff must provide Supplier with notice and details regarding the adjustments.
14.2 AutonomouStuff also may, at its option and in its sole and absolute discretion, terminate all or any part of the Order at any time and for any reason upon seven calendar days written notice to Supplier.
14.3 Upon receipt of notice of termination, whether under Section 1 or 14.2, Supplier shall, unless otherwise directed by AutonomouStuff: (i) promptly terminate all work under the Order on the effective date of termination; (ii) transfer title and deliver to AutonomouStuff or its designee the finished Goods, the work in process, and the parts and materials that Supplier reasonably produced or acquired according to quantities ordered by AutonomouStuff and that Supplier cannot use in producing Goods for itself or for others; (iii) take actions reasonably necessary to protect property in Supplier’s possession in which AutonomouStuff has an interest; and (v) where applicable and upon AutonomouStuff’s request, fully cooperate with AutonomouStuff in transferring the production of Goods to a different supplier.
14.4 Upon termination by AutonomouStuff under Section 2, AutonomouStuff shall pay only the following without duplication: (i) the Order price for all finished Goods in the quantities ordered by AutonomouStuff that conform to the Order for which Supplier has not been paid; and (ii) Supplier’s reasonable actual cost of merchantable and usable work-in-process and the parts and materials transferred to AutonomouStuff under Section 14.3. In no instance shall Supplier be entitled to payment that exceeds the price of the Goods actually delivered.
14.5 In the event of termination of a portion of the Order, the rights and obligations of the parties under the Order shall remain in full force and effect with respect to the rest of the Goods which are to be performed thereunder.
14.6 The exercise by AutonomouStuff of the rights of termination stated herein shall be without prejudice to all other rights and remedies that AutonomouStuff may have under the Order and as permitted by law. AutonomouStuff shall have the right of reasonable access to enter Supplier’s premises or any other place where the Goods or any part thereof are situated and to take possession of same.
14.7 Supplier acknowledges that its sole right in the event of any failure by AutonomouStuff to perform any of its obligations under the Order is to seek financial relief in respect thereof which financial relief shall be strictly limited to the value of the Order to which such obligations relate.
15.1 The rights and remedies reserved to AutonomouStuff in each Order shall be cumulative with and in addition to all other or legal or equitable remedies available to AutonomouStuff. Supplier is liable for all damages incurred by AutonomouStuff, including but not limited to compensatory, indirect, special, punitive, exemplary or consequential damages, including damages for lost profits or other damages directly or indirectly related to profits, fines, penalties, charges, assessments or other costs, incurred by AutonomouStuff as a result of Supplier’s: (i) breach of any representation or warranty set forth in the Order; (ii) failure to timely deliver conforming or otherwise non-defective Goods; (iii) failure to comply with the shipping and/or delivery or other requirements; and/or (iv) failure to otherwise comply with the Order, even if Supplier has cured the breach. Such damages shall include but not be limited to costs, expenses and losses incurred directly or indirectly by AutonomouStuff: (i) in connection with inspecting, testing, sorting, storing, reworking, repairing or replacing the nonconforming Goods; (ii) resulting from production interruptions; (iii) conducting or participating in Remedial Action(s) or other corrective service actions; or (iv) resulting from personal injury (including death) or property damage caused by the nonconforming Goods. AutonomouStuff’s damages include reasonable attorneys’ fees and other professional fees, settlements and judgments incurred by AutonomouStuff and other costs associated with AutonomouStuff’s administrative time, labor and materials and any late or partial delivery of Goods.
15.2 In any action brought by AutonomouStuff to enforce Supplier’s obligations in connection with the production or delivery of Goods for possession of property, Supplier acknowledges and agrees that monetary damages are not a sufficient remedy for any actual, anticipated or threatened breach of the Order and that, in addition to all other rights and remedies that AutonomouStuff may have, AutonomouStuff shall be entitled to specific performance including injunctive relief without the requirement to post bond or other security or other equitable relief as a remedy for any such breach, in addition to recovery of AutonomouStuff’s reasonable attorneys’ fees and expenses.
15.3 If the Goods or supplies sold by AutonomouStuff which incorporate the Goods are subject to a Remedial Action, the extent of Supplier’s liability shall be based upon a good faith allocation by AutonomouStuff of responsibility for the Remedial Action. AutonomouStuff shall notify Supplier as soon as practicable after AutonomouStuff learns in writing that a Remedial Action being considered implicates the Goods, and thereafter provide Supplier with the data provided to it by AutonomouStuff’s customer relating to the potential Remedial Action. In the event AutonomouStuff’s customer sets-off the cost of a Remedial Action against sums due to AutonomouStuff and AutonomouStuff and/or AutonomouStuff’s customer determines, in good faith, that the Remedial Action was caused by the failure of the Goods to conform to the quality standards and/or warranties under the Order, in whole or in part, AutonomouStuff may set-off the costs to AutonomouStuff of the Remedial Action against sums due to Supplier prior to the allocation of responsibility set forth above.
15.4 To the fullest extent permitted by law: (i) Supplier hereby assumes the entire, sole responsibility for any injury to person, including death, or damage to property of any kind or nature caused by, resulting from or in connection with the furnishing of Goods by Supplier or anyone acting on its behalf; (ii) AutonomouStuff shall not be responsible for any injury to person (including death) or damage to any property resulting from Supplier’s possession, use, misuse or failure of any equipment, tooling or other property of AutonomouStuff furnished to Supplier, and the use of any such property by Supplier shall constitute acceptance by Supplier of all responsibility for any claims for such injury or damage; and (iii) Supplier shall defend, indemnify and hold harmless AutonomouStuff, AutonomouStuff’s customer and the end-users of the products sold by AutonomouStuff or the end users of the products which incorporate the Goods and all of their respective owners, shareholders, directors, officers, affiliates, successors, assigns and customers, against all losses, damages, liabilities, claims, costs and expenses (including reasonable attorneys’ fees, and such losses, damages, liabilities, claims, costs and expenses related to Remedial Actions) arising out of or resulting from any defective Goods, or from any negligent or wrongful act or omission of Supplier or Supplier’s agents, employees or subcontractors, or any breach or failure by Supplier to comply with any of Supplier’s representations or other term of the Order.
15.5 If Supplier performs any work on AutonomouStuff’s premises or utilizes AutonomouStuff Property (as defined in Section 18), whether on or off AutonomouStuff’s premises: (i) Supplier shall examine the premises to determine whether they are safe for the requested work and shall advise AutonomouStuff promptly of any situation it believes to be unsafe; (ii) Supplier’s employees, contractors, and agents shall comply with all applicable laws and AutonomouStuff health, safety, environmental and other rules for the site, and if so requested, must leave AutonomouStuff’s premises at AutonomouStuff’s sole and absolute discretion; (iii) Supplier’s employees, contractors, and agents shall not possess, use, sell, transfer or be under the influence of alcohol or unauthorized, illegal, or controlled drugs or substances on the premises; and (iv) to the fullest extent permitted by law, Supplier shall indemnify and hold AutonomouStuff, AutonomouStuff’s customer, and all of their respective owners, shareholders, directors, officers, affiliates, successors, assigns and customers, harmless from and against any losses, damages, liabilities, claims, costs and expenses (including reasonable attorneys’ fees) for damages to the property of or personal injuries (including death) to AutonomouStuff, its employees or agents, or any other person or entity to the extent arising from or in connection with Supplier’s work on AutonomouStuff’s premises or Supplier’s use of AutonomouStuff Property as defined in Section 18.
15.6 Supplier’s obligations under this Section 15 to defend and indemnify shall apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise and, to the maximum extent permitted by applicable law, Supplier’s indemnification obligations shall apply even as to losses caused in whole or in part by an indemnified party’s negligence, except to the extent that losses resulted solely and directly from the gross negligence or willful misconduct of such indemnified party. AutonomouStuff has the right to be represented by and actively participate through its own counsel in the defense and resolution of any indemnification matters, at Supplier’s expense. The indemnification obligations of Supplier under the Order, including this Section, are independent of and in addition to any insurance and warranty obligations of Supplier. The indemnification obligation under this Section shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the benefit of Supplier under Workers’ Compensation Acts, or laws governing occupational diseases, disability benefits or other employee benefits.
16 CONSEQUENTIAL LOSS. To the extent permitted by law, AutonomouStuff shall have no liability to Supplier or anyone claiming by or through Supplier for any incidental or consequential or other damages of any kind whatsoever relating to AutonomouStuff’s property supplied by AutonomouStuff, including without limitation loss and/or deferral of production, loss of product, loss of use, loss of revenue, profit or anticipated profit (if any), in each case whether direct or indirect whether or not foreseeable at the date of the issue of the Order.
17.1 Supplier must arrange and maintain sufficient insurance to cover its full liabilities and obligations under the Order and shall provide on AutonomouStuff’s demand, a valid certificate(s) of insurance in respect thereof, evidencing such coverage. Supplier shall ensure that such insurance is to be in effect throughout the performance of the Order.
17.2 The insurances referred to in Section 1 shall include but shall not be limited to (i) comprehensive general liability insurance; (ii) comprehensive automobile liability insurance; (iii) property all risk/business interruption insurance; (iv) workers compensation and employer’s liability insurance covering all employees engaged in the performance of this Order for claims arising under any applicable workers’ compensation, occupation disease or health and safety laws and or regulations; (v) full fire and extended coverage insurance for the full replacement value of all Supplier’s property and all bailed AutonomouStuff Property (as such terms are defined in Section 18.1); and (vi) such other insurance coverage as may be requested from time to time by AutonomouStuff in its sole and absolute discretion. In each case Supplier’s insurance coverage will name AutonomouStuff and its affiliates (as applicable) as loss payee(s) and/or “additional insured(s)” and the coverage will be in such amounts sufficient to cover obligations set forth herein or in such amounts specifically set forth on AutonomouStuff’s Insurance Addendum which, when provided to Supplier, will form part of the Order.
17.3 Supplier’s insurance policies shall be placed with a reputable and substantial insurer satisfactory to AutonomouStuff, and shall ensure that all insurances (other than employer’s liability/workers compensation insurance), to the extent of the liabilities assumed by Supplier under the Order, shall be endorsed to provide that the underwriters waive any rights of recourse against AutonomouStuff, including in particular subrogation rights, in relation to the provision of the Goods under the Order.
17.4 The failure of AutonomouStuff to request or receive a certificate of insurance from Supplier or the acceptance of an incomplete certificate shall not operate as a waiver of Supplier’s obligations hereunder. Supplier’s obligations under this Section 17 shall in no way limit Supplier’s indemnity obligations.
18 AUTONOMOUSTUFF PROPERTY
18.1 “AutonomouStuff Property” means all information and materials, including tooling which has been furnished by AutonomouStuff to Supplier or for which Supplier has been reimbursed by AutonomouStuff such as fixtures, gauges, jigs, patterns, castings, cavity dies, molds, with all related appurtenances, accessions, and accessories (“Tooling”), samples, packaging, documents, standards, specifications, manufacturing processes, marketing and pricing data, proprietary information, Intellectual Property (as defined in Section 1), and other materials and items (including whether or not such materials are in any way modified, altered or processed) furnished or made available by AutonomouStuff either directly or indirectly to Supplier to perform the Order. As between Supplier and AutonomouStuff, AutonomouStuff Property shall be and remain the sole and exclusive property of AutonomouStuff.
18.1 With respect to AutonomouStuff Property in the custody or control of Supplier or sub-suppliers, contractors or agents: (i) Supplier shall use it or permit its use only for the fulfilment of the Order for AutonomouStuff; (ii) Supplier, at its own expense, shall keep AutonomouStuff Property in good working condition and house, maintain, repair and replace it as necessary so that such AutonomouStuff Property shall remain in the same condition as it was when it was received by Supplier, except for normal wear and tear; (iii) Supplier shall keep such AutonomouStuff Property fully insured for the benefit of AutonomouStuff at all times while in Supplier’s possession; and (iv) Supplier shall keep AutonomouStuff Property, and cause any of its suppliers, contractors or agents in possession of such AutonomouStuff Property to keep such AutonomouStuff Property, segregated from all other assets and labeled as being the property of AutonomouStuff. Supplier shall not release, relocate or dispose of AutonomouStuff Property to any third party without the prior, express, written permission of AutonomouStuff. Supplier shall promptly notify AutonomouStuff of the location of AutonomouStuff Property whenever located at any place other than Supplier’s facility.
19 INTELLECTUAL PROPERTY RIGHTS
19.1 “Intellectual Property” means patents, copyrights, trademarks, trade names, trade dress, trade secrets, copyrights, know-how, concepts, ideas, discoveries, inventions (whether or not patentable), processes, developments, designs, dimensions, tolerances, suggestions, materials, improvements, works of authorship, artwork, software, documentation, intellectual property/proprietary rights, rights in other tangible and intangible assets of a proprietary nature, domain names, company names, and the like.
19.2 “Intellectual Property Rights” means all forms of Intellectual Property protection or proprietary rights available throughout the world, including, without limitation, utility patents, design patents, patent applications, design registrations, utility models, industrial designs, copyrights, trademarks, trade dress, trade secrets, and rights in domain names.
19.3 Supplier warrants that the Goods and the sale and/or use thereof (before or after incorporation into products during manufacture) are original to Supplier and do not and shall not infringe any third-party’s Intellectual Property Rights.
19.4 Supplier agrees: (i) to defend, hold harmless and indemnify AutonomouStuff, AutonomouStuff’s customer and all of their respective owners, shareholders, directors, officers, affiliates, successors, assigns and customers, against all losses, damages, liability, claims, costs and expenses (including reasonable attorneys’ fees) related to any suit, claim or action for actual or alleged direct or contributory infringement of or inducement to infringe or violate any third party’s Intellectual Property or Intellectual Property Rights arising out of or relating to the manufacture, sale or use of the Goods, including cases in which Supplier has provided only part of Goods; (ii) to waive any claim against any indemnified party, including any hold-harmless or similar claim, in any way related to a third-party claim asserted against such indemnified party for infringement of any Intellectual Property Right, including any claim against AutonomouStuff that the infringement arose out of compliance with AutonomouStuff’s specifications; and (iii) that if the sale or use of the Goods is enjoined or, in AutonomouStuff’s sole and absolute judgment, is likely to be enjoined, Supplier shall, at AutonomouStuff’s election in its sole and absolute discretion and at Supplier’s sole expense, procure for AutonomouStuff the right to continue using the Goods, replace the same with equivalent non-infringing goods, or modify such Goods so they become non-infringing.
19.5 AutonomouStuff shall have all ownership, right, title and interest in any potential Intellectual Property Right in any country in the world that is first developed, conceived, acquired or obtained in the course of performance of the Order, or through use of AutonomouStuff Property (“Foreground IP”). Supplier hereby assigns to AutonomouStuff, and shall ensure that its sub-supplier shall assign to AutonomouStuff, with full title guarantee, all of its rights, title and interest including any future rights by way of present assignation in and to the Foreground IP. Such assignment shall be regarded by the parties as a present assignment of future rights which will take effect immediately upon the coming into existence of the Foreground IP. The parties agree that the price under the Order is deemed to include any fees payable to Supplier in relation to the acquisition of the Foreground IP by AutonomouStuff. The acquisition of the rights in this Section 5 by AutonomouStuff shall cover all territories worldwide. If requested to do so by AutonomouStuff, Supplier shall and shall cause its sub-supplier to, without charge to AutonomouStuff, execute all documents and do all such further acts as AutonomouStuff may require to perfect any assignment hereunder. To the extent that the Foreground IP includes any works of authorship created by or on behalf of Supplier, such works shall be considered “works made for hire”, and to the extent that such works do not qualify as “works made for hire”, Supplier hereby assigns to AutonomouStuff all right, title, and interest in all copyrights and moral rights therein.
19.6 AutonomouStuff may, at its sole discretion, give Supplier a royalty free, revocable, non-exclusive, non-transferable, worldwide licence to use the Foreground IP for the purpose of fulfilling Supplier’s obligations under the Order. Supplier shall not, in any event, be entitled to sub-license the Foreground IP and shall not be entitled to commercially exploit the Foreground IP.
19.7 Where Intellectual Property owned or developed by Supplier other than in the course of performance of the Order or through use of AutonomouStuff Property forms an integrated part or component of the Foreground IP and are embedded within or enables the same (“Background IP”), then to the extent only that it is necessary to enable AutonomouStuff to obtain the full benefits of ownership of the Foreground IP, Supplier hereby grants to AutonomouStuff, or shall ensure the direct grant to AutonomouStuff, of a perpetual, royalty-free, irrevocable, non- exclusive, assignable and worldwide license to use Supplier’s Background IP for the purpose of commercially exploiting the Foreground IP. Such license shall be effective upon the coming into existence of the Foreground IP and shall cover all territories worldwide.
19.8 Where any Intellectual Property of Supplier’s sub-supplier or any third party forms an integrated part or component of the Foreground IP and are embedded within or enables the same (“Third Party IP”), then to the extent only that it is necessary to enable AutonomouStuff to obtain the full benefits of ownership of the Foreground IP, Supplier shall ensure the direct grant to AutonomouStuff of a perpetual, royalty-free, irrevocable, non-exclusive, assignable and worldwide license to use the Third Party IP for the purpose of commercially exploiting the Foreground IP. Such license shall be effective upon the coming into existence of the Foreground IP and shall cover all territories worldwide.
19.9 Supplier shall ensure that the terms of its contracts with its subcontractors and employees are consistent with the terms of this Section.
20.1 Government Contracts. AutonomouStuff serves from time to time as a contractor and/or a subcontractor concerning contracts to supply to the United States government, including the supply of “commercial items” as defined in FAR 52.202-1. In those cases, Supplier shall comply with the federal laws, regulations, and rules applicable to subcontractors of government contractors, and those provisions and clauses contained in and required to be flowed down by AutonomouStuff’s United States government prime contract or sub-contract, including the following FAR clauses which are incorporated in this contract by reference to the extent applicable to the Order: (i) 203-19, Prohibition on Requiring Certain Internal Confidentiality Orders or Statements (Jan 2017) (section 743 of Division E, Title VII, of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) and its successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)); (ii) 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (Jul 2018) (Section 1634 of Pub. L. 115-91); (iii) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (Aug 2020) (Section 889(a)(1)(A) of Pub. L. 115-232); (iv) 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations (Nov 2015); (v) 52.233-3, Protest After Award (Aug 1996) (31 U.S.C. 3553); (vi) 52.233-4, Applicable Law for Breach of Contract Claim (Oct 2004) (Public Laws 108-77 and 108-78 ( 19 U.S.C. 3805 note)); (vii) 52.203-6, Restrictions on Subcontractor Sales to the Government (June 2020), with Alternate I (Oct 1995) (41 U.S.C. 4704 and 10 U.S.C. 2402); (viii) 52.203-13, Contractor Code of Business Ethics and Conduct (Jun 2020) (41 U.S.C. 3509)); (ix) 52.203-15, Whistleblower Protections under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub. L. 111-5). (Applies to contracts funded by the American Recovery and Reinvestment Act of 2009.); (x) 52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards (Jun 2020) (Pub. L. 109-282) ( 31 U.S.C. 6101 note); (xi) 52.204-14, Service Contract Reporting Requirements (Oct 2016) (Pub. L. 111-117, section 743 of Div. C); (xii) 52.204-15, Service Contract Reporting Requirements for Indefinite-Delivery Contracts (Oct 2016) (Pub. L. 111-117, section 743 of Div. C); (xii) 52.209-6, Protecting the Government’s Interest When Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment. (Jun 2020) (31 U.S.C. 6101 note); (xiii) 52.209-9, Updates of Publicly Available Information Regarding Responsibility Matters (Oct 2018) (41 U.S.C. 2313); (xiv) (a) 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award (Mar 2020) (15 U.S.C. 657a), (b) Alternate I (Mar 2020) of 52.219-3; (xv) (a) 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns (Mar 2020) (if the offeror elects to waive the preference, it shall so indicate in its offer) (15 U.S.C. 657a), (b) Alternate I (Mar 2020) of 52.219-4; (xvi) (a) 52.219-6, Notice of Total Small Business Set-Aside (Mar 2020) of 52.219-6 (15 U.S.C. 644), (b) Alternate I (Mar 2020) of 52.219-6; (xvii) (a) 52.219-7, Notice of Partial Small Business Set-Aside (Mar 2020) (15 U.S.C. 644) (b) Alternate I (Mar 2020) of 52.219-7; (xviii) 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)); (xix) (a) 52.219-9, Small Business Subcontracting Plan (Jun 2020) (15 U.S.C. 637(d)(4)), (b) Alternate I (Nov 2016) of 52.219-9, (c) Alternate II (Nov 2016) of 52.219-9, (d) Alternate III (Jun 2020) of 52.219-9, (d) Alternate IV (Jun 2020) of 52.219-9; (xx) (a) 52.219-13, Notice of Set-Aside of Orders (Mar 2020) (15 U.S.C. 644(r)), (b) Alternate I (Mar 2020) of 52.219-13; (xxi) 52.219-14, Limitations on Subcontracting (Mar 2020) (15 U.S.C. 637(a)(14)), (xxii) 52.219-16, Liquidated Damages-Subcontracting Plan (Jan 1999) (15 U.S.C. 637(d)(4)(F)(a)); (xxiii) 52.219-27, Notice of Service-Disabled Veteran-Owned Small Business Set-Aside (Mar 2020) (15 U.S.C. 657f); (xxiv) (a) 52.219-28, Post Award Small Business Program Rerepresentation (May 2020) (15 U.S.C. 632(a)(2)), (b) Alternate I (MAR 2020) of 52.219-28; (xxv) 52.219-29, Notice of Set-Aside for, or Sole Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns (Mar 2020) (15 U.S.C. 637(m)); (xxvi) 52.219-30, Notice of Set-Aside for, or Sole Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program (Mar2020) (15 U.S.C. 637(m)); (xxvii) 52.219-32, Orders Issued Directly Under Small Business Reserves (Mar 2020) (15 U.S.C. 644(r));(xxviii) 52.219-33, Nonmanufacturer Rule (Mar 2020) (15U.S.C. 637(a)(17)); (xxix) 52.222-3, Convict Labor (Jun 2003) (E.O.11755); (xxx) 52.222-19, Child Labor-Cooperation with Authorities and Remedies (Jan2020) (E.O.13126); (xxxi) 52.222-21, Prohibition of Segregated Facilities (Apr 2015); (xxxii) (a) 52.222-26, Equal Opportunity (Sep 2016) (E.O.11246), (b) Alternate I (Feb 1999) of 52.222-26; (xxxiii) (a) 52.222-35, Equal Opportunity for Veterans (Jun 2020) (38 U.S.C. 4212), (b) Alternate I (Jul 2014) of 52.222-35; (xxxiii) (a) 52.222-36, Equal Opportunity for Workers with Disabilities (Jun 2020) (29 U.S.C. 793), (b) Alternate I (Jul 2014) of 52.222-36; (xxxiv) 52.222-37, Employment Reports on Veterans (Jun 2020) (38 U.S.C. 4212); (xxxv) 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496); (xxxvi) (a) 52.222-50, Combating Trafficking in Persons (Jan 2019) (22 U.S.C. chapter 78 and E.O. 13627), Alternate I (Mar 2015) of 52.222-50 (22 U.S.C. chapter 78 and E.O. 13627); (xxxvii) 52.222-54, Employment Eligibility Verification (Oct 2015) (Executive Order 12989) (Not applicable to the acquisition of commercially available off-the-shelf items or certain other types of commercial items as prescribed in 22.1803.); (xxxviii) 52.223-18, Encouraging Contractor Policies to Ban Text Messaging While Driving (Jun 2020) (E.O. 13513); (xxxix) (a) 52.224-3 Privacy Training (Jan 2017) (5 U.S.C. 552 a), (b) Alternate I (Jan 2017) of 52.224-3; (xl) 52.225-1, Buy American-Supplies (May 2014) (41 U.S.C. chapter 83); (xli) (a) 52.225-3, Buy American-Free Trade Orders-Israeli Trade Act (May 2014) (41 U.S.C.chapter83, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. 3805 note, 19 U.S.C. 4001 note, Pub. L. 103-182, 108-77, 108-78, 108-286, 108-302, 109-53, 109-169, 109-283, 110-138, 112-41, 112-42, and 112-43, (b) Alternate I (May 2014) of 52.225-3, (c) Alternate II (May 2014) of 52.225-3, (d) Alternate III (May 2014) of 52.225-3; (xlii) 52.225-5, Trade Orders (Oct 2019) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 note); (xliii) 52.225-13, Restrictions on Certain Foreign Purchases (Jun 2008) (E.O.’s, proclamations, and statutes administered by the Office of Foreign Assets Control of the Department of the Treasury); (xliv) 52.229-12, Tax on Certain Foreign Procurements (Jun 2020); (xlv) 52.242-5, Payments to Small Business Subcontractors (Jan 2017) (15 U.S.C. 637(d)(13)); (xlvi) 52.222-41, Service Contract Labor Standards (Aug 2018) (41 U.S.C. chapter67); (xlvii) 52.222-42, Statement of Equivalent Rates for Federal Hires (May 2014) (29 U.S.C. 206 and 41 U.S.C. chapter 67); (xlviii) 52.222-43, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (Multiple Year and Option Contracts) (Aug 2018) (29 U.S.C. 206 and 41 U.S.C. chapter 67); (xlix) 52.222-44, Fair Labor Standards Act and Service Contract Labor Standards-Price Adjustment (May 2014) ( 29U.S.C.206 and 41 U.S.C. chapter 67); (l) 52.222-51, Exemption from Application of the Service Contract Labor Standards to Contracts for Maintenance, Calibration, or Repair of Certain Equipment-Requirements (May 2014) (41 U.S.C. chapter 67); (li) 52.222-53, Exemption from Application of the Service Contract Labor Standards to Contracts for Certain Services-Requirements (May 2014) (41 U.S.C. chapter 67); (lii) 52.222-55, Minimum Wages Under Executive Order 13658 (Dec 2015); (liii) 52.222-62, Paid Sick Leave Under Executive Order 13706 (Jan 2017) (E.O. 13706), (“Commercial Item FAR Sections”). Supplier agrees to flow-down all applicable FAR and supplementary sections, including the Commercial Item FAR Sections, to any lower-tier subcontractors working pursuant to this Order. Where necessary, to make the language of the Commercial Item FAR Sections applicable to the Order, the term “Contractor” shall mean “Supplier”, “Supplier”, “Vendor” or “Subcontractor” as appropriate, and the term “Contract” shall mean the “Order” or “Subcontract” as appropriate, and the terms “Government”, “Covered Entity”, “Contracting Officer”, and equivalent terms and phrases shall mean “AutonomouStuff” or “AutonomouStuff”.
20.2 EEO Clause. The parties hereby incorporate the requirements of 41 C.F.R. §§ 60-1.4(a)(7), 60- 300.5(d) and 60-741.5(d), and 29 C.F.R. Part 471, Appendix A to Subpart A, if applicable.
20.3 Supplier Code of Conduct. As a part of Hexagon, AutonomouStuff will work only with suppliers and subcontractors (as used in this Section, “Suppliers”) that share Hexagon’s values and commitment to ethical business practices. Hexagon’s Supplier Code of Conduct (available on Hexagon’s external website at https://bynder.hexagon.com/web/5fa4e8ec1a489b01/hexagon-supplier-code-of-conduct/) is intended to communicate Hexagon’s minimum requirements for the standards and business practices of Hexagon’s Suppliers. Supplier agrees that it has read and will comply with the principles in Hexagon’s Supplier Code of Conduct, and in full compliance with all applicable laws and regulations, in connection with Supplier’s performance of this contract.
20.4 Data Privacy. The parties acknowledge their obligations under applicable privacy laws or regulations and agree that personal information will be disclosed, retained and safeguarded in accordance with standards appropriate to the sensitivity of the information. Furthermore, the parties represent that, as applicable, consents for the collection, use, and disclosure of such personal information have been received.
20.5 Any breach by Supplier, its officers, employees, sub-suppliers and agents of any provision contained in this Section 20 shall be considered a material breach of the Order.
20.6 Supplier shall save, defend, indemnify and hold harmless AutonomouStuff and all of its respective owners, shareholders, directors, officers, affiliates, successors, assigns and customers, against all losses, damages, liability, claims, costs and expenses (including reasonable attorneys’ fees) arising out of Supplier’s violation of this Section 20.
21 RIGHT TO AUDIT. Supplier and its sub-suppliers shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under the Order. AutonomouStuff’s representatives shall be afforded access to Supplier’s records, books and correspondence and any other data relating to the Order and Supplier shall preserve these for a period of five calendar years after final payment of the Order.
22.1 “Confidential Information” means non-public information, owned or controlled by the AutonomouStuff and obtained by Supplier relating to the Order, all tangible property embodying or containing the same, and all derivatives thereof, including, without limitation, information relating to customers, suppliers, products, strategic plans, business logistics, market research and statistics, spend experience and other financial information, business methodologies, consultant findings and recommendations, scientific, technical, economic, or engineering information, including patterns, plans, compilations, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, copyright, patents or software codes, whether tangible or intangible, and however stored. Confidential Information shall not include any information which Supplier can demonstrate by written documentation: (i) has come into the public domain through no fault or action of Supplier; (ii) was rightfully known by the Supplier prior to its disclosure hereunder; (iii) was independently developed by the Supplier; (iv) was obtained by the Supplier from a third party without restriction and which, to the best of the Supplier’s knowledge, has not violated any contractual or legal obligation said third party has with respect to such information; or (v) was approved in writing by the AutonomouStuff for further disclosure.
22.2 Supplier shall not use the Confidential Information except in performance of the Order. Without limiting the generality of the foregoing, the Supplier may not record, copy, reproduce, or store the Confidential Information except as is necessary for the performance of its obligations under the Order.
22.3 Supplier shall not disclose the Confidential Information to any third party. Supplier may disclose the Confidential Information only to its or its affiliates’ representatives, agents, employees, consultants and/or independent contractors (collectively, “Representatives”) who need to know such Confidential Information to fulfil the Order; provided, however, that such Representatives are not competitors of the AutonomouStuff and are bound by confidentiality and non-use obligations that are at least as restrictive as the terms of the Order. Supplier shall remain liable for any breach of the Order by its Representatives. If Supplier is required by a government or court order to disclose any Confidential information, Supplier shall promptly provide written notice to the AutonomouStuff and, at the AutonomouStuff’s request and expense, cooperate with the AutonomouStuff’s efforts to resist such disclosure or obtain a protective order.
22.4 Supplier shall use the same safeguards and precautions to avoid disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret information of like kind, but in no case use less than a reasonable degree of care. Supplier shall promptly notify the AutonomouStuff of any breach or threatened breach of the Order.
22.5 This Section 23 shall survive any expiration or termination of the Order for a period of 5 years from the date of such expiration or termination, even after the return or destruction of the Confidential Information by the Supplier; and, with respect to trade secrets, this Section 23 shall survive such expiration or termination for so long as such Confidential Information remains a trade secret under the laws of the applicable jurisdiction. Upon the expiration or termination of the Order, or at any time upon AutonomouStuff’s request, Supplier shall promptly, and in any event no later than 10 days after the request, return or certify to the destruction of the AutonomouStuff’s Confidential Information to the AutonomouStuff.
23 ASSIGNMENT AND SUBCONTRACTING
23.1 Supplier shall not assign or sub-contract the Order in whole or in part without AutonomouStuff’s prior written consent. In seeking AutonomouStuff’s consent, Supplier shall give AutonomouStuff adequate opportunity to review the form of sub-contract, the choice of sub-supplier, the part of the Goods to be included in the sub-contract and any other relevant details as may be requested by AutonomouStuff.
23.2 No assignment or sub-contract shall relieve Supplier from any obligations or liabilities under the Order and Supplier shall be fully responsible and liable to AutonomouStuff for the acts and omissions to act of its sub-suppliers as fully as though such acts and omissions to act were the acts and omissions to act of Supplier. Should AutonomouStuff suffer any loss as a result of Supplier utilising sub-suppliers in the provision of the Goods, then Supplier shall fully indemnify AutonomouStuff on AutonomouStuff’s demand for any and all losses suffered by AutonomouStuff in this respect. For the avoidance of doubt, such indemnity shall apply irrespective of whether AutonomouStuff has provided its prior written consent for Supplier to utilise the sub-supplier in the provision of the Goods.
23.3 No sub-contract shall bind or purport to bind any member of AutonomouStuff. Supplier shall ensure that any sub-supplier shall be bound by and observe the provisions of the Order to the extent applicable to the sub-contract. Each sub-contract shall expressly provide for Supplier’s unconditional right of assignment of the sub-contract to AutonomouStuff in the event that AutonomouStuff terminates the Order or any part thereof for Cause.
23.4 AutonomouStuff shall have the right to assign the whole or any part of the Order without Supplier’s consent. In such an event, Supplier undertakes to execute without delay formal assignment of interest in the Order to the relevant party.
23.5 The Order shall inure to the benefit of and be binding upon the successors of AutonomouStuff and Supplier.
24 FORCE MAJEURE
24.1 No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached the Order, for any failure or delay in fulfilling the Order or performing any term thereof, when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, other government declared disasters or catastrophes, such as epidemics, pandemics or quarantines, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes, or blockades in effect on or after the date of the Order; and (f) national or regional emergency; and (i) any other similar events or circumstances beyond the reasonable control of the Impacted Party.
24.2 The Impacted Party shall give immediate notice of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 15 consecutive calendar days following written notice given by it under this Section, the other party may thereafter terminate the Order upon seven calendar days’ written notice.
25 EXCLUSIVE DISPUTE RESOLUTION MECHANISM
25.1 The parties shall resolve any dispute, controversy, or claim arising out of or relating to this Order, or the breach, termination or invalidity hereof (“Dispute”), under the provisions of this Section 26. The procedures set forth in this Section 26 exclusive mechanism for resolving any Dispute that may arise from time to time and is a condition precedent to litigation of the Dispute.
25.2 A party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including not fewer than three negotiation sessions attended by authorized representatives designated by each party. In the event that such Dispute is not resolved on an informal basis within 30 calendar days after one party delivers the Dispute Notice to the other party, either party may refer such Dispute to the parties’ respective Presidents/CEOs by notice from one party’s President/CEO to the other party’s President/CEO (“Escalation to Executive Notice”). For purposes of the Dispute Notice and the Escalation to Executive Notice, notices to AutonomouStuff shall not be effective unless a copy is also sent to [email protected].
25.3 If the parties cannot resolve any Dispute for any reason, within 15 calendar days after the Escalation to Executive Notice, either party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 27.
26 GENERAL PROVISIONS
26.1 Independent Contractors. Supplier’s relationship with AutonomouStuff will be that of an independent contractor, and nothing in the Order should be construed as creating a partnership, joint venture, or employer-employee relationship.
26.2 Amendment and Waiver. The Order may be amended or modified at any time and any provision of the Order may be waived, provided that an instrument in writing is executed by both parties setting forth the amendment, modification, or waiver. Supplier also agrees that AutonomouStuff’s waiver or relaxation of any restriction, whether in a single instance or repeatedly, will not amount to a waiver or relaxation of similar or additional restrictions.
26.3 Enforceability. The invalidity or unenforceability of any particular provision of the Order will not affect the Order’s other provisions, which are then to be applied as if the invalid or unenforceable provision were omitted.
26.4 Notices. All notices, requests and other communications required or permitted by the Order shall be in writing and may be (i) personally delivered or (ii) mailed by USPS certified or registered mail with postage prepaid and a receipt requested, or by a nationally recognized courier services such as FedEx or UPS, or (iii) if specified by AutonomouStuff in the Order, e-mailed, to the addresses provided in the Order. Notices delivered personally will be deemed received on the date delivered or refused. Notices mailed will be deemed received on the date upon which the return receipt is signed, or delivery is refused, or the notice is designated by the postal service as not deliverable, as the case may be. Notices delivered by email shall be deemed to be served 24 hours after the party has emailed said notice. Notices shall only be regarded as being served during the normal working week of Monday to Friday. Any party may designate, by notice to the other party, substitute addresses or addressees for notices.
26.5 Section and Other Headings. Section and other headings contained in the Order are for reference purposes only and shall not affect in any way the meaning or interpretation of the Order.
26.6 Choice of Law and Venue. The parties agree that the substantive laws of Illinois, but not the law of conflicts, shall govern the construction, validity and interpretation of the Order. The parties agree that any action related to the Order shall be brought in a state or federal court located in Peoria County, Illinois, and the parties submit to the jurisdiction of such court for disputes arising out of or related to the Order.
26.7 Entire Agreement. The Order constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, written or oral. The provision of Goods under the Order does not affect AutonomouStuff’s rights under any related purchase orders that may exist between the parties.