1.1.     Unless explicitly agreed otherwise in writing, the offering, sale, purchase and delivery of all Work to Brunswick Marine in EMEA, LLC., or its applicable affiliate identified in relevant documentation (the “Purchaser”) and a supplier or service provider (the “Supplier”) shall be governed by the present Purchasing Terms and Conditions and shall apply to all transactions between the Purchaser and Supplier.

1.2.     The purchase order (or order confirmation), together with these Purchasing Terms and Conditions, and any attachments and exhibits, specifications, drawings, notes, instructions, and other information, whether physically attached or incorporated by reference (collectively the “Order”), constitutes the entire and exclusive agreement between the Purchaser and the Supplier (the “Agreement”). If a separate fully executed master contract or other definitive agreement covering procurement of Works described in the Order exists between the Purchaser and the Supplier, the terms of such master agreement shall prevail over any inconsistent terms herein.

1.3.     Supplier’s electronic acceptance, acknowledgement of the Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. Other conditions or stipulations mentioned on forms or documents issued by the Supplier (including but not limited to their general terms and conditions), are not applicable unless expressly agreed in writing by the Purchaser. These Purchasing Terms and Conditions will prevail over any other terms and conditions of the Supplier or its representatives, whether or not materially different, contained in or referred to in invoices, in correspondence or elsewhere and this notwithstanding any provisions to the contrary in such other terms and conditions. In the event that explicit preference is given in writing to the terms and conditions of the Supplier or to any special agreement whatsoever, the following terms and conditions shall remain valid in a supplementary way.

1.4.     The Order supersedes any or all prior or contemporaneous oral or written communications with respect to the subject matter hereof. An amendment or waiver of any of these Purchasing Terms and Conditions with respect to the purchase of any Works must be explicitly included in a writing signed by both the Purchaser and the Supplier.

1.5.     These Purchasing Terms and Conditions impose upon the Supplier all requirements set forth in Purchaser’s Supplier Guidelines, Supplier Code of Conduct and Requirements Manual, as applicable and as amended from time to time. Compliance with these requirements is necessary for compliance with the terms of any order.

1.6.     The Supplier declares that they know and understand the meaning of all technical terms used in these Purchasing Terms and Conditions, as well as any possible additions to them and those used in the Order.

1.7.     The Purchaser retains the right to amend these Purchasing Terms and Conditions in its sole discretion at any time upon notice to the Supplier. Such changes shall be applicable as of the thirtieth (30th) day following notice to the Supplier.

2.1.     “Deliverables” means the deliverables specified in the Order (be it in a purchase order, an order confirmation, or Statement of Work) to be delivered on or before the Delivery Date.

2.2.    “Delivery Date” means the date or dates specified in the Order by which the Supplier is required to deliver the Work. 

2.3.    “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

2.4.     “Products” means tangible goods specified in the Order (be it in a purchase order, an order confirmation, or Statement of Work) to be delivered on or before the Delivery Date.

2.5.     “Services” means the services that Supplier is to perform for Purchaser specified in the Order (be it in a purchase order, an order confirmation, or Statement of Work).

2.6.     “Statement of Work” (“SOW”) means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for Purchaser.

2.7.     “Subcontractor” means a third-party performing Work under an agreement with Supplier (a “Subcontract”).

2.8.     “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors, and Subcontractors.

2.9.     “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.

2.10.  “Work” means the Deliverables, Products, and Services specified in the Order (be it in a purchase order, an order confirmation, or Statement of Work).

3.1.     Supplier does not have the right to bind the Purchaser in relation to third parties or to enter into any agreement in the name of or for the account of the Purchaser, except where the Purchaser has expressly requested and authorized Supplier to do so in writing.

4.1.     Supplier may not assign any of its rights or delegate any of its obligations without Purchaser’s prior written consent, which Purchaser will not unreasonably withhold. Purchaser may, at its option, void any attempted assignment or delegation undertaken without Purchaser’s prior written consent. Any change in ownership or control of Supplier, including without limitation as a result of a merger, consolidation, or sale of equity or assets, shall be considered an assignment or transfer which requires Purchaser’s prior written consent. Notwithstanding the foregoing, Purchaser may assign or transfer this Agreement, or its rights and obligations under this Agreement, to any of its affiliates and the successors of each and/or any third party that acquires all or substantially all of the assets of Purchaser, without such consent.

4.2.     Supplier may not subcontract any of its rights or obligations without Purchaser’s prior written consent. If Purchaser consents to the use of a Subcontractor, Supplier will: (i) guarantee and remain liable for the performance of all subcontracted obligations; (ii) indemnify Purchaser for all damages and costs of any kind, subject to the limitations in Section 24 (Indemnity), incurred by Purchaser or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors.  If Supplier fails to timely pay a Subcontractor for work performed, Purchaser will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify, and hold Purchaser harmless for all damages and costs of any kind, without limitation, incurred by Purchaser and caused by Supplier’s failure to pay a Subcontractor.

4.3.     To the extent allowed by applicable law, no person who is not a party to Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom, or otherwise.

5.1.     Orders.  Purchaser’s obligation to purchase Works from Supplier shall be limited to Orders submitted by Purchaser.

5.2.     Acknowledgement.  All Orders shall be deemed acknowledged by Supplier within forty-eight (48) hours unless Supplier immediately notifies Purchaser and proposes modifications to the Order.  If Supplier proposes modifications, the Order shall not be effective until Purchaser provides its written consent.  However, if Supplier does not acknowledge an Order or ships some or all the Works pursuant to an Order, Supplier shall be deemed to have accepted the Order as submitted by Purchaser.

5.3.     Cancellation. Purchaser may cancel any order or any part of an order for its own convenience on notice to Supplier.  Supplier shall immediately stop, and cause its suppliers or Subcontractors to stop, all work related thereto.  In such event, Purchaser shall pay Supplier a reasonable cancellation fee for products or components that are custom or unique for Purchaser, consisting of (A) a percentage of the price equivalent to the percentage of work performed prior to the notice of cancellation less (B) the scrap value of the materials used.  Purchaser shall have no obligation for work done after the notice or for work done that Supplier could reasonably have avoided.  Such fee shall be Supplier’s sole remedy for such cancellation.  For standard products or components, Purchaser shall not incur any cancellation fees.

5.4.     Changes.  Purchaser may at any time make changes in (i) the quantity of the Work; (ii) the scope of the Work; (iii) the Delivery Date; (iv) applicable drawings, designs, and specifications, (v) the method of shipment or packing; (vi) the place of delivery of the Work; or (vii) the location for Services to be performed through written change orders.  With regard to any change order proposal, the Supplier shall inform Purchaser of the increase or decrease in cost and time as well as any other consequences of such change order within 10 (ten) days from the receipt thereof by Supplier. The decision by Purchaser on the implementation of any change order will be confirmed to the Supplier in writing. The Supplier shall not start any additional work before having received such confirmation. Services or work made under change orders which are not authorized by Purchaser in accordance will not be reimbursed by Purchaser.

5.5.     Other goods. If Orders include Products and Services other than the Works, the terms of this Agreement will apply to the purchase of such Products and Services unless Supplier promptly notifies Purchaser of its objection to providing such Products or Services in accordance with the terms of this Agreement.

5.6.     Blanket Order. If an Order is identified on the face hereof as a blanket Order, it is issued to cover such portion of the Purchaser’s Products or Services listed on the face hereof as Purchaser may elect to purchase from time to time from Supplier, unless expressly provided otherwise on the face hereof. If Purchaser elects to purchase from Supplier, an authorized representative of Purchaser will request orally or in writing that Supplier make specific deliveries (or shipments) only in the quantities and at times specified by the authorized representative. Under no circumstances shall Purchaser be under any obligation to Supplier for goods or services not specifically covered by a request of an authorized representative of Purchaser.

6.1.     Supplier shall notify Purchaser at least three (3) months in advance of any proposed changes to Supplier’s manufacturing process, suppliers, or any change to any part.

6.2.     Supplier’s Modifications to Works.  Supplier may not modify or discontinue any Work unless:

                       (a)    Supplier provides prior written notice to Purchaser at the earliest stage in the design process that is appropriate in order to provide adequate time for any product validation or engineering certification required by Purchaser. One hundred twenty (120) days is the minimum notice required.

                       (b)    Supplier develops and demonstrates, to Purchaser’s satisfaction, that the modified version is at least comparable to the Work.  Whether a model is comparable shall be determined with reference to whether it meets (i) the specifications and price of the model it replaces, and (ii) Purchaser’s testing, validation, and qualification standards and appearance and packaging requirements.  Supplier shall bear the cost of any testing, validation, qualification, or engineering certification undertaken by Purchaser.

Any comparable models or altered Works accepted by Purchaser in writing shall be deemed Works under the Order.  

7.1.     Unless otherwise specified in the Order, the price for the Work includes all applicable taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, and government-imposed surcharges.

7.2.     Supplier warrants that the prices for the Works delivered or sold hereunder are not less favorable than those currently extended to any other customer of Supplier for the same or similar goods in similar quantities. If Supplier reduces its price for such goods prior to final delivery of goods, Supplier shall reduce the price(s) in a corresponding manner.

8.1.     Payment terms shall be ninety (90) days. Payment due dates, including discount periods, will be computed from the date of receipt of conforming Works or date of receipt of an accurate invoice (whichever is later) to the date Purchaser’s check is issued or electronic payment is authorized.  Purchaser reserves the right to pay invoices by wire transfer.

8.2.      It is the responsibility of Supplier to notify Purchaser of correct bank account information and any changes to the account during the term of this Agreement.

8.3.     Supplier shall issue invoices in accordance with the requirements set forth in Purchaser’s supplier manual and/or shipping guidelines (as applicable), and such invoices must include the Order number, the corresponding item number for the Products ordered, the manufacturer and sku, the date and terms of shipment, itemized quantities, descriptions and corresponding prices of the Products shipped, and any discount terms. Where Services are performed, the invoice shall also include a reasonably detailed description of the Services provided.

8.4.     The Supplier shall submit invoices in the correct format, including e-invoices where applicable. The Purchaser reserves the right to refuse payment for any invoices that are submitted incorrectly, are incompatible with the Purchaser's systems, or do not comply with the agreed-upon format. In such cases, the Supplier will be required to resubmit the invoice in the correct format before payment can be processed.

8.5.     Invoices (except dating) are paid less cash discount indicated on the face hereof. Taxes, if any, must be separately itemized. Supplier must include on the first production invoice a statement detailing the value of any assist provided, and the method of payment of such assist. Supplier must also include a statement on each invoice detailing any antidumping/countervailing duties which are due on the merchandise being imported, in the event that such duties are due, and supply all information necessary to make a determination as to whether such duties are due.

8.6.     Payment will be in the currency specified on the Order, or if none is stated, then the currency stated in the invoice.

8.7.     Payment of invoices does not constitute acceptance of the applicable Work and payment thereof is without prejudice to any and all claims Purchaser may have against the Supplier under the Order.

9.1.     Shipments shall be made in the quantities and at the times specified in the Order.

9.2.     If an Order is identified as a blanket Order or if no time for delivery is specified, the time for delivery shall be at the times and in the amount requested in a release or delivery schedule furnished by Purchaser. Unless otherwise stated herein, time is of the essence.

9.3.     Unless Purchaser expressly instructs otherwise, Supplier will deliver all Work to Purchaser’s facility at the address set forth in the Order and such Work will only be accepted by Purchaser in normal business hours. Supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes, and insurance.

9.4.     Without written approval of Purchaser, commencement of production by Supplier of any item more than thirty (30) days prior to such scheduled Delivery Date will be conclusively presumed by Purchaser as unreasonably or unnecessarily anticipated by Supplier. In the event this order is terminated in whole or in part for any reason, Purchaser shall have no obligation to pay Supplier the purchase price of, or any costs of production for, any items which were produced in unreasonable or unnecessary anticipation of Delivery Date.

9.5.     Time is of the essence in Supplier’s performance of its obligations as stated in the Order. If at any time Supplier has reason to believe deliveries will not be made as scheduled it shall immediately give Purchaser verbal notice of the causes of the delay and its expectation as to when delivery will be made. Such verbal notice shall be confirmed within 7 days by written notice from Supplier. Supplier’s notice will not constitute Purchaser’s waiver of any of Supplier’s obligations.

9.6.     In addition to Purchaser’s other remedies, and without liability, Purchaser reserves the right (i) to refuse and to return at Supplier’s risk and expense, including, without limitation, warehouse or other storage costs and extra handling costs, shipments made in excess of quantities ordered and shipments made before or after the time or times specified in the Order or in supplementary schedules furnished by Purchaser, and (ii) if delivery is not made in the quantities and/or by the time or times specified, to take one or more of the following actions:

                       (a)    direct Supplier to make expedited routings of goods, and the difference in cost between any such expedited routing and the Order routing costs shall be paid by Supplier.

                       (b)    cancel the Order in whole or part / terminate the agreement without liability by notice effective when received by Supplier.

                       (c)    refuse to accept any subsequent delivery of the Work which the Supplier attempts to make.

                       (d)    recover from the Supplier any expenditure reasonably incurred by Purchaser in obtaining the Work in substitution from another supplier; and

                       (e)    claim damages for any additional costs, loss or expenses incurred by Purchaser which are directly or indirectly attributable to the Supplier’s failure to deliver the Work on the Delivery Date.

Purchaser moreover reserves the right to apply to the Supplier, liquidated damages at the rate of one tenth percent (1/10%) of the price of the Order, per calendar day for each day of delay. Liquidated damages are capped at ten percent (10%) of the total price of the Order. The rights and remedies of Purchaser provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law, at equity, or under any applicable Order or SOW.

9.7.     If Supplier delivers Work more than 15 calendar days after the Delivery Date, Purchaser may reject such Work. Purchaser will hold any Work rejected under this Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s return shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges Purchaser incurs on Supplier’s behalf. Purchaser may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which Purchaser does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges. Any Work which is not accepted by Purchaser or returned to Supplier under Section 9.7, and which is marked with any trademark (including, without limitation any logo), both registered and common law, will be destroyed by Supplier. In no event will Supplier deliver or sell any such Work to any third party.

9.8.     Purchaser cannot be obliged to accept a part delivery, unless agreed otherwise in writing. Where Purchaser agrees in writing to accept delivery by installments, the Order will be construed as a single Order in respect of each installment. Failure by the Supplier to deliver any one installment shall entitle Purchaser at its option to treat the whole Order as repudiated.

9.9.     No charges for unauthorized transportation will be allowed. Supplier shall prepay any unauthorized shipment which will result in excess transportation charges.

9.10.  Deliveries must be preceded or accompanied by a waybill, consignment note or delivery slips. The order number and references of the Works must be shown on all documents. The Works can be refused if these references are absent.

9.11.  Supplier will preserve, pack, package, and handle the Works so as to protect them from loss or damage and in accordance with Purchaser’s shipping requirements and guidelines, which are incorporated herein by reference. Purchaser and Supplier shall assist each other, including the procuring of documents or information, in filing and/or prosecuting any claims against carriers or others arising out of such shipment.

9.12.  If the Supplier requires Purchaser to return any packaging material to the Supplier that fact must be clearly stated on any Order acceptance or confirmation delivered to Purchaser, and any such packaging material will only be returned to the Supplier at Supplier’s cost.

10.1.     Deliveries shall be performed according to the relevant INCOTERM mentioned on the Order. Unless otherwise provided in the Order, the default INCOTERM applicable to the purchase of Products by Purchaser is DDP – Purchaser Location (INCOTERM 2020). Should the Products be delivered DDP according to these terms or the relevant Order, the Supplier acknowledges that it is and will remain responsible for any and all costs associated with transportation, insurance and customs clearance both in the country of export and the country of import of the goods. In addition to the above, the Supplier acknowledges that it shall in such case, be considered the exporter and importer of records of the Products. It shall therefore maintain any and all registrations and do any and all acts necessary to be considered as such in the jurisdictions of export and import.

10.2.     However, title to said goods shall pass to Purchaser upon the completion of unloading of the goods at the destination specified for any delivery (or on payment whichever is the earlier) - without prejudice to any right of rejection that may accrue to Purchaser - and Supplier shall bear the risk of loss of goods while in the possession of the carrier.

10.3.     Supplier warrants that title to Works will pass to Purchaser free and clear of all liens, claims, security interests, or encumbrances and that no Works shall be subject to the rights of any third party.

11.1.     All delivered Works received shall be subject to Purchaser’s right of inspection and rejection. Such right shall be extended to Purchaser’s customers, (including any public authorities, if applicable).

11.2.     Payment for Works delivered hereunder shall not constitute acceptance thereof, and all payments against documents shall be made with a reservation of rights by Purchaser for defects, including, without limitation, defects apparent on the face thereof.

11.3.     Supplier shall provide and maintain inspection and process control systems acceptable to Purchaser for production of Works covered hereby. Records of all inspection work by Supplier shall be kept complete and available during the performance of the Agreement and/or Order or for such longer period, as may be specified.

11.4.     When Works are made to Purchaser’s specifications, Purchaser may inspect such Works at the place of manufacture during production without waiving its right to subsequently reject or revoke acceptance of such goods for undiscovered or latent defects.

Supplier, at its expense, shall furnish, or cause to be furnished, facilities and assistance reasonably necessary to ensure the safety and convenience of each inspection.

11.5.     Failure to inspect and accept or reject goods shall not relieve Supplier from any responsibilities hereunder. If any of the goods ordered hereunder are found at any time to not conform with the requirements, including any applicable samples, drawings or specifications, or to be defective in any design, workmanship or materials, Purchaser may require Supplier to inspect goods and remove and replace nonconforming goods with goods that conform. Purchaser may also elect to inspect and sort goods if Supplier fails to timely inspect, remove and replace goods, and charge Supplier for cost of inspection. The rights granted to Purchaser in this paragraph are in addition to any other rights Purchaser may have, by application of law, or otherwise.

11.6.     Specifically related to the Works purchased, the Supplier is required to retain any product verification or validation evidence / documentation for a period of no less than 3 years. Following this period, a request must be made by the Supplier, in writing, to Purchaser to obtain permission to destroy this documentation.

12.1.     Supplier represents and warrants that it has the full power to enter into the Order (or similar agreement) and to perform its obligations under the Order and furthermore expressly warrants that any delivered Works will (collectively “Supplier’s Warranty”):

                       (a)    meet all the legal and regulatory requirements, guidelines and official regulations applicable at the time of delivery, as well as the technical and other standards generally accepted in the industry and the state of the art;

                       (b)    not violate any third party’s intellectual property rights

                       (c)    if the Works are software, it will not contain any harmful code (i.e. software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.;

                       (d)    are provided with the necessary clear instructions for use, safety instructions and warnings – to the extent applicable;

                       (e)    conform to any and all specifications, drawings, plans, instructions, samples or other descriptions, whether express or implied, whether furnished by Purchaser or by Supplier;

                        (f)    be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Supplier knows of or has reason to know of any particular purpose for which Purchaser intends to use such goods, the goods will be fit for such particular purpose;

                       (g)    be new and merchantable;

                       (h)    be of good material and workmanship and free from defects, whether latent or patent; and

                        (i)    be free from any claim of any nature by any third person, and Supplier will convey clear title thereto.

12.2.     The foregoing Supplier’s Warranty shall survive Purchaser’s inspection, acceptance and use of goods. Supplier hereby extends to Purchaser any and all warranties received from Supplier’s suppliers and agrees to enforce such warranties on Purchaser’s behalf. All Supplier’s warranties shall run to Purchaser, its successors, assigns, customers and users of products sold by Purchaser.

12.3.     If any defect, failure, or other non-conformity appears, Purchaser shall have the right to: (i) retain such defective items and an equitable adjustment will be made in the Order price for such defective items; (ii) require Supplier to repair or replace such defective Work at the Supplier’s sole expense including all shipping, transportation, and installation costs or (iii) correct or replace such defective Work with similar items and recover the total costs thereof from Supplier. If such repair, replacement, or re-performance is insufficient in Purchaser’s sole discretion, the full original cost of such Work shall be refunded to Purchaser. Supplier’s Warranty shall survive acceptance and payment and shall run to Purchaser, its customers, and their successors in title and shall not be deemed to be exclusive but shall be in addition to Purchaser’s other rights under the terms of the Order or equity.

12.4.     Supplier’s Warranty shall remain in effect for the duration specified under the applicable law, which provides the ultimate end-consumer with a legal guarantee, with a minimum guarantee of two (2) years after the Delivery Date.

12.5.     In addition to the foregoing, Supplier shall indemnify and hold Purchaser harmless from and against all damages, claims, liabilities, and expenses (including court costs and attorney’s fees) arising from, relating to or resulting in any way from a breach of any warranty, whether express or implied, or from any act or omission of Supplier, its officers, agents, employees or subcontractors.

13.1.     If Supplier’s Work involves operations by Supplier on the premises of Purchaser, Supplier shall take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work and shall indemnify Purchaser against all loss which may result in any way from any act or omission of the Supplier, its agents, employees, or subcontractors,

13.2.     Supplier shall maintain Public Liability Property Damage and Employee’s Liability and Compensation Insurance employees and have a waiver of recourse against Purchaser included in that policy. The Supplier will produce a certificate of insurance on Purchaser’s request. If the insurer does not agree to the waiver of recourse against Purchaser in writing, the Supplier must indemnify Purchaser against all claims that may arise against Purchaser as a result.  

13.3.     The Supplier shall indemnify Purchaser against injury (including death) to any person or the loss of or damage to any property which arises out of the act, default or negligence of the Supplier, his agents or Subcontractors or by reasons of defective design or workmanship in the premises of the Purchaser.

14.1.     Supplier guarantees that any individual that operates Purchaser’s equipment, whether employed directly or through a Subcontractor, will possess the necessary qualifications prior to use of equipment, including necessary licenses. Purchaser disclaims liability for damages arising out of or in any way connected with Supplier’s use of Purchaser’s equipment and/or property. Supplier agrees to use any and all of Purchaser’s equipment in accordance with safety regulations outlined by the OSHA Contractor must request permission to use Purchasers equipment prior to use.

15.1.     Supplier shall secure and maintain in effect all necessary permits, licenses, and authorizations for the conduct of its business and the performance of its obligations towards the Purchaser.

15.2.     Supplier shall comply with all applicable international, national, state, and local laws, ordinances, regulations, and codes, including but not limited to those related to manufacturing, packaging, labeling, export, import, environmental protection, employment, anti-corruption, and health and safety, in performing its obligations towards the Purchaser and in the manufacture, sale, delivery, and provision of the Services and Works sold to the Purchaser (regardless of whether or not they have been explicitly referenced below).

15.3.     Supplier shall notify Purchaser as soon as practical of any change in law, rule, or regulation applicable to Works.

15.4.     Supplier agrees to comply with all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Supplier and Purchaser are established or from which goods and/or other items may be supplied and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to the receipt and use of goods.

15.5.     All purchased materials shall satisfy current safety and regulatory requirements in force in the markets where they are to be placed, specifically but not exclusively those related to restricted, hazardous materials and substances. They must also meet essential functional and performance requirements as defined in regulatory texts and harmonized standards, where applicable. When required in the regulatory texts, the products will carry the marks provided for in the applicable legal acts and will be delivered with certificates/declarations of conformity specified therein.

15.6.     Supplier acknowledges and agrees that its responsibility for compliance with laws includes, but is not limited to, compliance with all applicable environmental laws, rules, regulations and ordinances. Delivery of goods will constitute certification by Supplier that such goods comply with all applicable federal and state packaging and labeling laws.

15.7.     Purchaser shall have the right to audit Supplier’s (and Supplier’s products’) compliance with all applicable laws, rules, regulations, and ordinances and/or request certifications of compliance with the same, on a periodic basis.

16.1.     Documentation

                       (a)    Import/Export documentation. Supplier shall comply with Purchaser’s reasonable request for information or assistance necessary to secure exportation or importation of the Works, including supply of necessary paperwork, including, but not limited to, invoices, mill certificates, country of origin certificates, certificates of compliance, phytosanitary declarations, US Lacey Act declarations, waiver of duty drawback rights and supporting documentation, etc.  Supplier shall take any other reasonably requested action that may be required to secure the exportation or importation of the Works, including retention of records in compliance with Customs regulations. To the extent wood packaging is used, Supplier shall comply with all requirements of International Phytosanitary Packaging Material 15 (“ISPM 15”) requirements, including clear and legible marking and, if necessary, evidence of proper treatment(s). Documentation must be sufficient to allow the import and export of the Supplier’s goods by the Purchaser, including, the value of the goods, country of origin, piece count, total packages, piece weight, net weight and gross weight.

                       (b)    ISF(USA SHIPMENTS ONLY) Supplier shall provide all necessary documentation and data for Purchaser to file accurate and timely Importer Security Filings (“ISF”).  If Supplier provides inaccurate or untimely information for the ISF, Supplier shall immediately reimburse Purchaser for any resulting fines or penalties. 

                       (c)    Supplier must provide a copy of the Material Safety Data Sheet (MSDS) with each shipment or as otherwise specified on an Order.

16.2.     Export Controls. Supplier acknowledges and understands that select parts ordered may be components, finished goods and/or technology subject to control under the export laws and regulations of the United States, the EU, UK, Canada, Australia or other jurisdictions. Supplier agrees that it will notify Purchaser if any Work Purchaser is purchasing has any export restrictions.  Additionally, drawings, specifications and other technical data may be restricted under those same laws and regulations. Purchaser and Supplier mutually agree to notify the counterparty if such drawings or technical data are subject to export controls.

16.3.     Supply Chain Security. Purchaser is a member of supply chain security programs, including the US Customs Trade Partnership Against Terrorism (“CTPAT”) and Authorized Economic Operator (“AEO”) programs in the EU, China and Mexico.  Accordingly, Supplier shall use ISO17712 seals, or other seals that are compliant with CTPAT/AEO requirements, when sealing containers and trucks for shipment.  The seal number shall be included on the documentation to the Purchaser.  If the seal is broken in transit, Supplier shall promptly notify Purchaser of the change and the cause of the change.

Supplier agrees to meet the minimum-security requirements of the CTPAT and AEO programs, and agrees to respond to reasonable requests for information regarding their adherence to those requirements.

16.4.     Free Trade Agreements. Supplier agrees to supply reasonably requested documentation to support free trade agreement claims by the Purchaser, including, but not limited to, annual certificates for the US-Canada-Mexico Free Trade Agreement (“USMCA”), EUR1 certificates and/or statements or other similar documentation.  Supplier agrees to review and understand underlying rules of origin related to the free trade agreement being solicited and will maintain proper documentation to support any certificates provided to Purchaser.

16.5.     Modern Slavery, Child Labor and Human Trafficking or Human Rights.  Supplier shall comply with local and international regulations related to modern slavery, child labor, human rights and human trafficking, including, but not limited to, the US Tariff Act of 1930, , the UK Modern Slavery Act, the Canada Fighting Against Forced Labour and Child Labour in Supply Chains Act and other regulations and international standards related to forced labor, child labor, human rights and trafficking in persons.    

17.1.     Duty to disclose

                       (a)    Supplier shall immediately notify Purchaser if (a) Supplier is, or believes that it will be, unable to comply with any such law, order, rule, or regulation, or (b) Purchaser’s use of Works will not fully comply with applicable laws, orders, rules, or regulations, including but not limited to those explicitly referenced above.

                       (b)    Upon disclosure, the Supplier agrees to cooperate fully with the Purchaser to investigate the disclosed non-compliance. The Supplier commits to take prompt corrective action to rectify the non-compliance to the satisfaction of the Purchaser. The Supplier shall also implement measures to prevent future occurrences of such or similar non-compliance.

                       (c)    Failure to promptly disclose non-compliance or to cooperate in the investigation and rectification process may be considered a material breach of this Agreement, giving the Purchaser the right to pursue any remedy available under this Agreement or under applicable law, including but not limited to termination of the Agreement.

17.2.     Supply Chain Transparency.

The Supplier commits to transparency regarding its supply chain related to the Works provided to Purchaser. Upon the Purchaser's request, the Supplier agrees to furnish detailed information about its supply base, including but not limited to manufacturers, subcontractors, and raw material suppliers involved in the production and distribution of the Works supplied to the Purchaser.

                       (a)    Information Provision: The Supplier shall, at the request of the Purchaser, provide:

17.3.     Executed documents such as, but not limited to, Country of Origin certificates, the name and address of manufacture, European Union REACH and RoHS compliance, and the Conflict Minerals Reporting Template (“CMRT”). 

·        Detailed descriptions of the entities in the supply chain, including their roles, geographical locations, and contact information.

·        Reports on the practices, policies, and performance of its supply base related to environmental sustainability, labor rights, ethical sourcing, and compliance with applicable laws and regulations.

·        Any other information deemed necessary by the Purchaser to ensure compliance with its policies and standards for supply chain transparency and ethical sourcing.

                       (a)    Method of Disclosure: The requested information may be required to be delivered through various means, including, but not limited to, ad-hoc reports, participation in surveys, and access to digital systems designed for supply chain tracking and transparency.

                       (b)    Frequency and Format: The Supplier agrees to comply with reasonable requests for information at a frequency and in a format as specified by the Purchaser. The Purchaser shall endeavor to provide the Supplier with reasonable notice of such requests to facilitate compliance.

                       (c)    Breach and Remediation: Failure to comply with the terms of this clause will be considered a material breach of this Agreement. In such an event, the Purchaser reserves the right to take appropriate remedial action, including but not limited to termination of the Agreement, subject to a cure period for the Supplier to rectify the breach as agreed upon by both parties.

17.4.     Right to audit. Purchaser maintains the right to audit the Supplier to verify the accuracy of any documentation/information provided and compliance with this Agreement, including on-site visits by the Purchaser or their representative, requests for documentation and evidence to support Supplier policies and producers, or other reasonable requests for information and/or documentation. The Supplier agrees to provide reasonable assistance and access to facilitate such audits.

18.1.     Purchaser maintains a set of expectations in the Supplier Code of Conduct.  By signing this Agreement, Supplier confirms that they have reviewed the Supplier Code of Conduct and agree to the stipulations therein.  The Supplier Code of Conduct can be accessed at www.brunswick.com and the most recent version will always be available on the website, superseding any printed or otherwise provided copies.  To the extent that any stipulations of this Agreement are in conflict with the Supplier Code of Conduct, this Agreement is controlling.

19.1.     Without Purchaser’s prior written permission, Supplier shall not advertise or publish the fact that Purchaser has contracted to purchase Works from Supplier, disclose information relating to the Agreement / Order or use the name of Purchaser of its customers in advertising or other publications.

19.2.     The Supplier undertakes to keep confidential and not to divulge to any third party any confidential information, reports, records or other restricted documents concerning the Purchaser or its activity which they have received or obtained for a period of 5 years after the last delivery made by the Supplier. The Supplier shall ensure that its directors, employees, agents and other intermediaries are bound by a similar duty of confidentiality. Reproductions or use of this information for unlawful or unallowed purposes is punished by law and will be prosecuted.

19.3.     Supplier shall keep confidential any technical, process, strategic, or economic information derived from drawings, specifications and other information furnished by Purchaser or observed by Supplier while on Purchaser’s premises and shall not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining Purchaser’s written consent. By way of example, such information may relate to Purchaser’s products, services, business, operations, sales, distribution, assets, technology, financial condition, marketing strategy and/or analysis, or prospects of Purchaser or its affiliates, and may or may not be marked “confidential”.  Except as required for the efficient performance its obligations, Supplier shall not make copies or permit copies to be made of such drawings, specifications, or other data without prior written consent of Purchaser.

19.4.     Notwithstanding anything to the contrary, nothing in in these Purchasing Terms and Conditions prohibits a disclosure if required by law or pursuant to court or government action; provided, however, that Purchaser is given reasonable prior notice of such disclosure so that Purchaser may seek an appropriate protective order, and upon the request and at the expense of Purchaser, Supplier will use all reasonable efforts to cooperate in obtaining such order. 

19.5.     Supplier will destroy or return to Purchaser all tangible and electronic copies of disclosed information, and all notes and summaries thereof, upon the end or termination of the Agreement/Order.

19.6.     Any knowledge or information which Supplier shall have disclosed or may hereafter disclose to Purchaser, and which in any way relates to the goods or services purchased by Purchaser and Purchaser’s Quality Procurement Specification shall not, unless otherwise specifically agreed to in writing by the Purchaser, be deemed to be confidential or proprietary information, and shall be acquired by Purchaser, free from any restrictions (other than a claim for patent infringement), as part of the consideration.

19.7.     If Supplier and Purchaser have entered into a separate confidentiality or non-disclosure agreement, or an agreement with a provision addressing such concepts, the foregoing shall be deemed to be in addition to, and in no way a limitation of, the terms of such agreement or provision.

20.1.     Each party shall own all intellectual property it owned prior to the commencement of an Agreement and/or Order. 

20.2.     Unless otherwise stated in an Order, Purchaser is the sole and exclusive owner of all Deliverables. Supplier irrevocably assigns and transfers to Purchaser all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.

20.3.     Materials, equipment, tools, dies, molds, copyright, design rights, or any other forms of   intellectual property rights in all drawings,                 specifications and data supplied by Purchaser to Supplier or not so supplied but used by Supplier specifically in the manufacture of the  Work shall at all times be and remain the exclusive property of Purchaser but shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to Purchaser and shall not be disposed of other than in accordance with Purchaser’s written instructions, nor shall such items be used otherwise than as authorized by Purchaser in writing.

20.4.     Notwithstanding Section 21.2, Supplier grants to Purchaser a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sub-licensable license to any Intellectual Property Rights in the Deliverables which arose outside the scope of the Order to the extent necessary for Purchaser to exercise its rights in the Work as reasonably contemplated by the Order.

20.5.     Supplier grants to Purchaser a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sub-licensable license to any Intellectual Property Rights in the Work which are necessary for Purchaser to use, import, copy, execute, reproduce, display, perform, and distribute copies of and modify (including creating improvements and derivative works based on) the Work.

20.6.     In consideration of Purchaser buying Works from Supplier, Supplier agrees to hold harmless and indemnify Purchaser, its officers, agents, successors, assigns, and customers against and from any and all claims, demands, losses, costs, damages, suits, judgments, penalties, expenses and liabilities of any kind or nature whatsoever, including reasonable attorneys’ fees that may be incurred arising directly or indirectly out of or in connection with the possession, use, reuse, sale, or resale of said Works, including actual or alleged infringement of intellectual property rights, including invention rights, pending applications, patents, trademarks, copyrights, trade names trade dress, trade secrets, right of privacy, and right of publicity, and Supplier agrees to defend same if requested by Purchaser. Supplier warrants and acknowledges Purchaser’s reliance hereon, that Supplier has good and lawful title to all Works supplied by Supplier to Purchaser, and that Supplier conveys same free of encumbrance, including infringement of any known intellectual property rights, or if covered by intellectual property rights of Supplier, and in consideration of Purchaser buying Works from Supplier, Supplier covenants to not sue Purchaser for infringement of said intellectual property rights of Supplier. Any settlement of such claims, demands, losses, costs, damages, suits, judgments, penalties, expenses and liabilities shall be subject to Purchaser’s consent, such consent not to be unreasonably withheld. If use of any intellectual property is enjoined, Supplier shall, at Purchaser’s option and Supplier’s expense, either: (a) procure for Purchaser the right to continue using such intellectual property; (b) replace it with a non-infringing equivalent; or (c) cease use of the intellectual property in providing Works and refund the purchase price to Purchaser, and in all cases, Supplier shall be responsible for all related costs and expenses. 

21.1.     All tangible and intangible property, including information or data of any kind, drawings, computer software, know-how, documents, trademarks, copyrights, tools, equipment or material (a) furnished to Supplier by Purchaser, (b) specifically paid for by Purchaser, or (c) created with Purchaser Intellectual Property (clause 21), and any replacement thereof, or any materials affixed or attached thereto, shall be the property of Purchaser. Such property, and whenever practical, each individual item thereof, shall be plainly marked or otherwise adequately identified by Supplier as “Property of [name Purchaser]” and shall be safely stored separate from Supplier’s property. Supplier shall not substitute any property for Purchaser’s property and shall not copy or use such property except in filling Purchaser’s orders.

21.2.     While in Supplier’s custody or control such property shall be held at Supplier’s risk, shall be kept insured by Supplier at Supplier’s expense in an amount equal to the replacement cost with loss payable to Purchaser, and shall be subject to removal at Purchaser’s written request, in which event Supplier shall prepare such property for shipment and shall redeliver to Purchaser in the same condition as originally received by Supplier, reasonable wear and tear excepted, all at Supplier’s expense.

22.1.     The Order shall continue for the time period stated on the applicable SOW, agreement or purchase order, and if no term is stated, the Order shall continue until the Products are delivered and accepted, or until the Services are performed.

22.2.     Termination for convenience. Notwithstanding anything in this Agreement to the contrary, either party may terminate the Order upon not less than ninety (90) days prior written notice to the other party.

                       (a)    In the event of such termination by Purchaser, Supplier will terminate all work started and promptly advise Purchaser of quantities of applicable work and material on hand or purchased prior to termination, and the most favorable disposition that Supplier can make thereof. Supplier will comply with Purchaser’s instructions regarding the disposition of such work and material. Within ninety (90) days after receipt of notice of termination, Supplier will submit all claims relating thereto.

                       (b)    Purchaser will have the right to check claims at any reasonable time by inspecting and auditing records, facilities, work or materials of Supplier. Purchaser will pay Supplier the agreed price of finished work and the cost to Supplier (excluding profit or losses) of work in process and any raw material, based on any audit Purchaser may conduct, and generally accepted accounting principles; less: (i) the reasonable value or cost (whichever is higher) of any items used or sold by Supplier without Purchaser’s consent;  (ii)the agreed value of any items used or sold by Supplier with Purchaser’s consent; and  (iii) the value of any defective, damaged or destroyed work or material. Purchaser will make no payments for finished work, work in process, or raw material fabricated or procured by Supplier in excess of Purchaser’s written releases.

                       (c)    Payment made under this clause will constitute Purchaser’s only liability in the event Order is terminated as provided herein. Supplier’s acceptance of such payment will constitute an acknowledgment that Purchaser has fully discharged such liability. In addition to all rights and remedies conferred on the Purchaser hereunder, Purchaser shall have all of the rights and remedies provided by the applicable law.

22.3.     Material breach. An Order, any SOW or both, may be terminated by either party in case of material breach by the other party and the breaching party does not cure such breach within the allocated remedy period specified in the written notice from the non-breaching party. Purchaser shall have no further payment obligation to Supplier under any terminated SOW if Purchaser terminates the SOW under this Section 23.3.

22.4.     Termination for Cause. 

                       (a)    Either party may terminate the agreement or cancel an individual Order immediately on notice to the other if (i) proceedings in bankruptcy or insolvency, reorganization, receivership, or dissolution are initiated by or against the other party; (ii) the other party makes an assignment for the benefit of creditors; (iii) the other party admits in writing that it is unable to pay its debts generally as they become due; or (iv) the other party winds up or liquidates its business

                       (b)    Purchaser may terminate the agreement or cancel an individual order, partially or entirely, immediately upon notice, and without prior intervention of a Court being required, upon any of the following events:  (i) Supplier’s failure to provide goods conforming to the warranties provided herein or by law;  (ii) Supplier’s failure to make deliveries as specified in the order or as specified in Purchaser’s supplemental schedules; (iii) Supplier’s failure to comply with any other terms or conditions of the Purchaser; (iv) the appointment of a receiver or trustee for Supplier, provided such appointment is not vacated within 30 days from the date of such appointment; (v) Supplier, or one of Supplier’s employees, agents or contractors, commits a felony or any other act of fraud, moral turpitude or dishonesty which is detrimental to Purchaser or Purchaser’s reputation or its business or which materially impairs Supplier’s ability to perform the duties required under this Agreement (vi) Supplier does not comply with Purchaser’s “Supplier Ethics Policy” (available on Brunswick.com), as may be amended by Purchaser from time to time.

In the event of any such cancellation, Purchaser, without prejudice to other legal or equitable remedies available to it, shall have the right:

                       (a)    to refuse to accept delivery of any and all goods covered by the order.;

                       (b)    to return to Supplier any and all goods already accepted and to recover from Supplier all payments made for such goods (and for freight, storage, handling and other expenses occurred by Purchaser in connection therewith);

                       (c)    to recover any advance payments to Supplier for undelivered or returned goods, and

                       (d)    to purchase elsewhere and charge Supplier with any resultant losses, including, without limitation, loss of profits, loss of contracts, increased costs, loss of revenue, loss of use, loss of data or for consequential or indirect loss or any type of lucrum cessans

22.5.     Change of Control. Purchaser may immediately terminate the Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.

22.6.     Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the                               expiration or termination of the Order.

23.1.     Supplier (“Indemnifying Party”) agrees to indemnify and hold harmless Purchaser, its subsidiaries, parent company, affiliates, licensees, successors and assigns, and each of their respective directors, officers, shareholders and employees and customers (collectively “Indemnified Party”) against and from any and all claims, losses, costs, damages, judgments, penalties, and liabilities of any kind (including for any loss of profits, loss of contracts, increased costs, loss of revenue, loss of use, loss of data or for any consequential or indirect loss or any type of lucrum cessans and including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers) (collectively, “Claims”) arising out of or related to the Works or Supplier’s negligence,  willful misconduct or breach of these terms and conditions or Order.

23.2.     The Indemnified Party will provide the Indemnifying Party with written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnifying Party will have no authority to compromise or settle any Claim on the Indemnified Party’s behalf without the Indemnified Party’s consent.

23.3.     Supplier agrees to comply with Purchaser’s insurance conditions as revised from time to time and submit evidence of such insurance. Such insurance shall include, but not be limited to: Comprehensive General Liability insurance, including contractual and products liability. There shall be minimum limits of EUR. 1.000.000/EUR. 3.000.000 for bodily injury and EUR. 500.000 for property damage. The certificates must specifically mention that contractual and products liability is provided and must contain a clause covering Supplier’s assumption of liability. Supplier agrees to supply (if needed) automobile liability insurance covering owned, non owned, and hired vehicles.

23.4.     Nothing in this Section shall limit any other remedy of the parties.

24.1.     NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, Purchaser WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR   ANY AMOUNTS IN EXCESS OF THE AMOUNT PAID OR PAYABLE BY Purchaser UNDER THE APPLICABLE PORTION OF THE PURCHASE ORDER PERTAINING TO THE   WORK(S) GIVING RISE TO SUCH LIABILITY.

24.2.     IN NO EVENT WILL Purchaser BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT Purchaser WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

24.3.     THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL  DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

25.1.     For the purposes of fulfilling its obligations under an Order, Purchaser shall collect and/or receive from Supplier personal data about (1) Supplier’s officers, directors, and employees, and from (2) Supplier’s contractors and their officers, directors, and employees. Supplier hereby authorizes  Purchaser to store, use and process all personal data collected in fulfilling the terms of the Order anywhere Purchaser does business, i.e., in and out of the European Economic Area (“EEA”), including in countries that do not have the same level of protection of personal data as in Supplier’s  country.  Such personal data may include names, phone numbers, and e-mail/postal addresses of Supplier’s officers, directors, employees and contractors (“Personal Data”). Such Personal Data shall be processed by Purchaser as an Independent Controller based on the following legal basis: Execution of a Contract. As a global company, Purchaser may transfer Personal Data to other of Brunswick Corporation and to U.S. third-party processors and assignees acting on Brunswick Corporation’s behalf and under Brunswick Corporation’s instructions, for uses consistent with these terms. Purchaser shall take appropriate measures to cover the transfer of Personal Data in and out of the EEA in conformity with applicable Data Protection Laws. Purchaser’s Privacy Policy is available at https://www.brunswick.com/privacy-policy. Supplier acknowledges that it has duly informed and obtained proper consent from (1) its officers, directors, and employees, and from (2) its contractors, and their officers, directors, employees, with respect to the disclosure to – and further processing by – Purchaser of their Personal Data for the above-mentioned purposes, including their transfer in and out of the EEA, before providing any Personal Data to Purchaser.

26.1.     All questions and disputes concerning the validity, interpretation, enforcement, performance or termination of all Contracts between Purchaser and the Supplier are governed solely by Belgian law, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980).

26.2.     In case of any dispute relating to the rights and duties imposed by this Agreement, both Parties will openly discuss and make reasonable efforts at an amicable resolution. In the event of any dispute, controversy or claim (collectively, “Dispute”) between Purchaser and Supplier relating to, arising out of or in connection with the interpretation, performance or nonperformance of this Agreement, the parties agree to meet, in person or by telephone, not later than fifteen (15) days after a written request by either party to attempt to resolve any such Dispute.  If the parties are unable to resolve the Dispute within thirty (30) days from the date of such written request, such Dispute shall be, upon notice by either party to the other, submitted to mediation in the capital of the country in which the Purchaser is located. 

26.3.     If the parties are unable to resolve the Dispute within sixty (60) days from the date of such notice regarding mediation, any action, claim, suit or proceeding between the Parties, whether based on state, statutory, common or any other law, including but not limited to, any and all disputes relating to, arising out of or in connection with the interpretation, performance or the non-performance of this Agreement and any and all disputes arising out of or in connection with transactions in any way related to this Agreement (including the termination of this Agreement) shall be litigated solely and exclusively before the courts of the capital of the country in which the Purchaser is located. The Parties consent to the in personam jurisdiction of said court for the purposes of any such litigation and waive, fully and completely, any right to dismiss and/or transfer any action due to venue. 

27.1.     Force Majeure.  Neither party shall be liable to the other for failure to comply with any of the terms of this Agreement to the extent that such failure has been caused solely by fire, war, insurrection, government restrictions, acts of terrorism, government boycott or other governmental action.  Any failure or delay in performance because of any of the foregoing shall not be a default under this Agreement.  However, the party so affected shall promptly give notice to the other party whenever such contingency becomes reasonably foreseeable and shall use reasonable efforts to overcome the effects of the contingency as promptly as possible and shall promptly give written notice to the other party of the cessation of such contingency.

27.2.     Severability If any part or any clause of these Purchasing Terms and Conditions is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Purchasing Terms and Conditions. Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes clo­sest to the intention of Parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.

27.3.     Notice.  Any notice, request, or instruction to be given to a party shall be in writing and shall be delivered by messenger, air courier, or mailed by certified mail, postage prepaid, with return receipt requested. If any such notice, request, or instruction applies to a brand division or affiliate of Purchaser, it shall also be delivered to such entity at the address set forth on the applicable Order.  This Agreement and any applicable Order number shall be identified on the document.  The parties’ addresses and addressees may be changed on notice given in accordance with this clause.

27.4.     Right to Set-Off.  Purchaser may deduct from any payment due to Supplier or set off against any claim by Supplier any amount which is due to Purchaser or any brand, division or affiliate of Purchaser from Supplier for any reason.

27.5.     Waiver Any failure or delay by the Purchaser in exercising any right under an agreement and/or these Purchasing Terms and Conditions with the Supplier, any single or partial exercise of any right under such agreement and/or these Purchasing Terms and Conditions or any partial reaction or absence of reaction by the Purchaser in the event of violation by the Supplier of one or more provisions of such an agreement and/or these Purchasing Terms and Conditions, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of the Purchaser’ rights under such agreement these Purchasing Terms and Conditions or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by the Purchaser, this waiver cannot be invoked by the Supplier in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.