CHANGES - DAS shall have the right at any time to make changes in this Order by written notice to Supplier/Vendor, and Supplier/Vendor agrees to comply with such changes. If such changes cause a material increase or decrease in Supplier/Vendor's costs or time of performance of this Order, Supplier/Vendor shall notify DAS immediately and negotiate an adjustment.
TIME OF THE ESSENCE - Time of shipment and of other aspects of performance hereunder is of the essence of this agreement.
RIGHT OF INSPECTION AND REJECTION - Material and equipment supplied by Supplier/Vendor shall be received subject to DAS's inspection and approval within a reasonable time after delivery, notwithstanding prior payment. If specifications or warranties are not met or if the products are damaged, products, material and equipment may be returned at Supplier/Vendor's expense. No products, material or equipment returned to Vendor as defective shall be replaced except upon DAS's formal authorization.
WARRANTY - Supplier/Vendor represents and warrants that each of its Products, and its accompanying labeling, packaging, and instructions for use, sold to DAS shall: (i) at the time of delivery, be new Products and shall be free and clear of all liens and encumbrances, (ii) be free from all material defects in design, materials and workmanship, (iii) conform to the Supplier/Vendor specifications and shall perform in the manner described in the Supplier/Vendor specifications and in the manner for which it was designed, (iv) comply with all applicable laws, regulations, rules, ordinances, statutory or other legally required warranty requirements, and orders and meet all required statutory, governmental, judicial, regulatory and industry standards, requirements and orders, including labeling and warning requirements, whether federal, national, state, provincial, or local, including but not limited to US Consumer Products Safety Act, US Consumer Product Safety Improvement Act, US Consumer Product Safety Commission requirements, US FDA, FCC and USDA requirements and California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), and Supplier/Vendor has on-going quality control processes to ensure compliance therewith, (v) Supplier/Vendor has all right, title, ownership interest and marketing rights necessary to enter into this Agreement and to sell the Products to DAS pursuant to this Agreement, (vi) the Products and the sale and use of the Products do not infringe upon any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party and there are no suits or proceedings, pending or threatened, alleging any such infringement, and (vii) to the extent manufactured in the United States, Supplier/Vendor has complied with the obligations of all applicable requirements of sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under section 14 thereof and if produced outside of the United States, were produced in accordance with all local wage and hour laws and did not use forced or child labor.
INDEMNITY PROVISIONS - Supplier/Vendor shall indemnify, defend and hold DAS and/or DAS’s customers and their respective affiliates, successors and assigns, and respective officers, directors, employees and agents (“Indemnified Parties”) harmless from and against any and all losses, expenses or damages, of whatever nature, which may be incurred by DAS and/or its customers as a result of any claims or actions: (i) for infringement of patents, copyrights, trademarks or other intellectual property or proprietary rights that might be brought against the Indemnified Parties in connection with, or as a consequence of, the sale or use of Supplier/Vendor Products, or such other materials supplied by Supplier/Vendor pursuant hereto; (ii) for negligence, whether active or passive, or for product liability of whatever specie, including, without limitation, claims or actions for strict liability, improper design or breach of warranty, express or implied, wherever such claims or actions may be asserted and regardless of where the events on which such claims or actions are based occurred, and relating to the sale, furnishing or distribution of any Supplier/Vendor Products; (iii) for fines, penalties, damages, or other claims as a result of failure of the Products to comply with applicable law, including but not limited to US Consumer Products Safety Act, US Consumer Product Safety Improvement Act, US Consumer Product Safety Commission requirements, US FDA, FCC and USDA requirements and California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65); (iv) breach of Supplier/Vendor’s warranties or (v) breach of confidentiality obligations. In the event an intellectual property infringement has occurred or in Supplier/Vendor’s opinion is likely to occur, in addition to Supplier/Vendor’s obligation to indemnify, DAS agrees to permit Supplier/Vendor, at Supplier/Vendor’s option and expense, either to procure for DAS the right to continue using the Product; or if the performance of functionality thereof will not thereby be materially adversely affected, promptly replace or modify the same so that it becomes non-infringing; or, if neither of the foregoing alternatives is reasonably available, and subject to its obligation to Indemnify the Indemnified Parties, immediately terminate Vendor’s obligations and DAS’s rights, under this PO with regard to such Product, and if DAS returns such Product to Supplier/Vendor, refund to DAS, the price originally paid by DAS for such Product, less applicable credits.
SHIPPING ERRORS - Supplier/Vendor shall ship quantities and type of Product in accordance with the requirements of this Purchase Order. Supplier/Vendor shall not substitute other Products for the Products ordered and if incorrect Products are shipped, DAS may, in its sole discretion, reject the entirety of the shipment or accept some Products and reject others. If Supplier/Vendor ships less or more than the order quantity of Product, DAS may, in its sole discretion reject the entire shipment, or, in the case of an under-shipment, accept the shipment and obtain a credit for any Product not received or accept the shipment and demand the balance be shipped by the most expeditious method, and in the case of an over-shipment, accept the additional quantities or keep only the ordered quantities and return the balance of the Product at Supplier/Vendor’s expense.
USE OF TRADEMARKS -
Supplier/Vendor Trademarks - DAS is granted a limited right, so long as DAS is selling Supplier/Vendor’s products, to use the trademarks, service marks, corporate names, trade names, trade dress, and logos (collectively referred to herein as “Trademarks”) owned by Supplier/Vendor in connection with the promotion and sale of Supplier/Vendor Products. This limited right is expressly limited to be within Supplier/Vendor’s brand guidelines.
DAS Trademarks – If Supplier/Vendor is manufacturing for a DAS brand, Supplier/Vendor is granted a limited right, to use the trademarks, service marks corporate names, trade names, trade dress and logos of DAS solely for the purpose of manufacturing DAS branded products, affixing same to products and packaging and shipping the DAS branded products to DAS and its affiliates and for no other purpose.
CONFIDENTIALITY/TRADE SECRETS - All specifications, data and other information furnished by DAS, or its agents, to Supplier/Vendor in connection with this order remain the exclusive intellectual property of DAS and shall be treated by the Supplier/Vendor as proprietary and shall not be disclosed or used, outside the limitations of this Purchase Order, without prior written approval of either the Vice President of Purchasing or Vice President, Global Sourcing. In addition, the purchase of the Supplier/Vendor's product does not authorize the Supplier/Vendor to use the name of or make reference to DAS for any purpose in any releases for public or private dissemination, nor shall the Supplier/Vendor divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of either the Vice President of Purchasing or Vice President, Global Sourcing.
PRODUCT COMPLIANCE - Supplier/Vendor certifies that when appropriate, Products bear the relevant certifications by recognized governmental or testing agencies such as CE, UL, CSA, FCC, FMCSA, FDA, USDA or equivalent certification as applicable. Supplier/Vendor certifies that Products fully comply with applicable codes, standards, specifications, laws, and regulations, including but not limited to US Consumer Products Safety Act, US Consumer Product Safety Improvement Act, US Consumer Product Safety Commission requirements, US FDA, FCC and USDA requirements and California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), and are suitable for resale or other distribution as contemplated by this Agreement and that all Products and Product packaging fully comply with all applicable codes, standards, laws, and regulations regarding labeling requirements. Vendor shall make such documents available to DAS upon request.