The following "Terms and Conditions" shall govern all purchases of goods and services
by Harley-Davidson Motor Company, Inc. or any of its affiliates or any of its or their respective
purchasing groups, divisions, segments, contractors, or agents ("Buyer") from the supplier ("Supplier")
under the Purchase Order (the "Purchase Order") to which the Terms and Conditions are attached,
incorporated on the back hereof, or otherwise incorporated by referenced.
- OFFER AND ACCEPTANCE. The Purchase Order constitutes an offer or counteroffer (an "Offer") by Buyer
to buy the goods and services identified on the Purchase Order (together with any samples, prototypes and
other deliverables required to be provided under the Purchase Order, the "goods and services") from Supplier,
subject to and limited to the terms and conditions on this document and the attachments to these Terms and
Conditions. This Offer expires thirty (30) days after its date, unless this Offer has been accepted by Supplier
or revoked by Buyer prior to acceptance by Supplier. This Offer may be accepted by Supplier executing the Purchase
Order and returning a signed copy to Buyer, or by any other commercially reasonable means of acceptance by Supplier,
including by shipment of goods, performance of services, or otherwise.
- DELIVERY AND PERFORMANCE. Time is of the essence with respect to performance of the Purchase Order,
including, without limitation, delivery of conforming goods and performance of conforming services under the
Purchase Order. The delivery date(s) set forth in the Purchase Order is (are) the required delivery date(s)
(or in the case of services, the delivery and performance date(s)) at Buyer's designated facility, unless
otherwise expressly set forth in the Purchase Order. Buyer reserves the right to refuse all or any portion
of the goods or services and/or to terminate all or any portion of the Purchase Order if Supplier fails to
deliver timely any portion of the goods, or to perform timely any portion of the services, in accordance
with the Purchase Order. If Supplier's delivery of conforming goods will not meet the required delivery d
ate(s) for any reason, Supplier shall provide Buyer with written notice of such delay and, unless Buyer
terminates the Purchase Order as a result of such breach, ship the conforming goods via the most expeditious
available method of transportation, and any additional cost resulting from such method of transportation
shall be borne by Supplier. Acceptance of any initial shipments of goods or performance of services shall
not bind Buyer to accept future shipments of goods or performance of services, nor deprive it of the right
to return goods already accepted, including due to any failure of such goods to conform to the provisions
of the Purchase Order or by reason of defects, latent or patent, or other breach of warranty. Delivery of
goods under the Purchase Order shall not be deemed to be complete until all of the goods contemplated by
the Purchase Order have been actually received and accepted by Buyer, notwithstanding delivery to any carrier,
and performance of services under the Purchase Order shall not be deemed to be complete until all of the
services contemplated by the Purchase Order have been fully performed, received, and accepted by Buyer.
Goods received in advance of Buyer's delivery schedule may, at Buyer's option, be returned at Supplier's
expense or be accepted and payment withheld until the delivery date(s) set forth in the Purchase Order.
Supplier shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities
earlier than or in excess of what is reasonably required to meet Buyer's delivery schedule.
- PACKING AND SHIPPING. The shipping terms for all goods shipped from a location within the United States
are F.O.B. (as that term is defined and used in section 2-319 of the Uniform Commercial Code) Buyer's
designated facility or such other location as is designated by Buyer. The shipping terms for all goods
shipped from a location outside the United States are DDP (as that term is defined under INCOTERMS 2010)
Buyer's designated facility or such other location as is designated by Buyer. For the avoidance of
doubt, Supplier shall be responsible for the costs of shipping the goods to the applicable destination,
and if Buyer makes arrangements to pay such shipping costs, Buyer shall have the right to offset such
costs against amounts owing to Supplier under the Purchase Order. Buyer shall have the right to route
all shipments; provided, however, that if Buyer does not route any particular shipment, Supplier shall
ensure that (a) all freight shipments, carload or less carload, to be made by route taking lowest rate,
and (b) delivery is made by truck or other means of transportation except freight, express or parcel post,
delivery is to be guaranteed and delivery charges prepaid by Supplier. Prior to each shipment, Supplier
shall contact Buyer for the purpose of allowing Buyer to consult with Supplier regarding the terms of
such shipment. Immediately upon shipment, Supplier shall provide Buyer with written notice of shipment,
specifying complete shipping and routing information. All goods shall be suitably packed, marked with
the Purchase Order number and other information specified by Buyer, shipped in accordance with the
shipping instructions set forth in the Purchase Order and otherwise prepared for shipment in accordance
with the requirements of the carrier so as to obtain a competitive transportation cost. No charge shall
be made to Buyer for boxing, packing, crating, carting or transportation unless separately itemized
on the Purchase Order. Packing slips shall accompany each shipment, showing the order number, quantity
and description of the goods; and the last copy must state "Order Complete." In the event no such
packing slip accompanies any shipment, the count or weight or other measure of Buyer shall be final
and conclusive. Buyer shall not be obligated to accept any shipments in excess of the ordered quantity,
and any excess or advance shipments may be returned to Supplier, or stored by Buyer, at Supplier's
expense. Buyer shall have the right to purchase any such excess or advance shipments from Supplier at
the purchase price designated in the Purchase Order. Regardless of shipping terms, all risk that the
goods may be lost, damaged, stolen or delayed in transit shall be borne by Supplier until conforming
goods have been actually received, inspected, tested and accepted by Buyer. Supplier shall be liable
to Buyer for any loss or damage resulting from Supplier's failure to act so as to provide adequate
protection during shipment. Additional expenses, charges or claims incurred as a result of deviation
from the specified route, noncompliance with other shipping instructions or improper description of the
shipment in shipping documents shall be borne by Supplier. All invoices, bills of lading, packaging,
cases, shipping tags and similar documents shall set forth the applicable destination, and, Purchase
Order number. Originals of all shipping costs and expenses much accompany invoices for pre prepaid
shipments. Except for delays that are excused under this Agreement, Supplier shall be solely liable
for any and all costs and expenses for air shipments required because of delivery delays.
- INSPECTION. All goods supplied and services performed pursuant hereto shall be subject to inspection
and test by Buyer and its contractors and agents, and acceptance or rejection by Buyer. Such inspection
and testing of the goods and/or services by Buyer and its approved contractors and agents may be completed
at any time and at any place, whether during or after manufacture as to goods, or during or after performance
as to services, and notwithstanding the terms of delivery, performance, or payment, or, as to goods, that
title has not passed to Buyer. Payment for goods or services prior to inspection shall not constitute acceptance
of such goods or services. Any inspection, testing, or other evaluation by Buyer shall in no way affect,
waive, or invalidate any of Supplier's warranties in respect of the goods and services or any of Buyer's
other rights or remedies hereunder, at law, in equity or otherwise.
- PRICING AND PAYMENT. The full, fixed purchase price for the goods and services, including, without
limitation, performance of all of Supplier's obligations under the Purchase Order, is set forth on the
Purchase Order. If no pricing is set forth on the Purchase Order, then the purchase price shall be the
last price charged by Supplier for the goods and services. Supplier shall notify Buyer in writing in
advance of accepting the Purchase Order in the event that the pricing set forth on the Purchase Order is
higher than Supplier's pricing current in effect for the goods and services covered by the Purchase Order.
The purchase price payable under the Purchase Order shall be paid in accordance with the payment terms
set forth on the Purchase Order. Without limiting the foregoing, (a) Supplier shall issue each invoice
after delivery of the applicable conforming goods or performance of the applicable conforming services,
but in no event later than thirty (30) days after such delivery or performance (in either case, unless
the Purchase Order otherwise sets forth a different payment schedule), and (b) as to goods, the original
and one copy of a Bill of Lading or comparable shipping document for the delivery of goods must accompany
Supplier's invoices. Payment of such invoices shall be subject to a pro rata reduction by Buyer for any
(w) shortage in the goods shipped, (x) nonconforming goods delivered by Supplier, (y) failure-to perform
services, or (z) nonconforming services performed by Supplier. Any discount period shall be calculated
from the date of receipt by Buyer of an appropriate invoice. Upon and during any breach of the Purchase
Order by Supplier, Buyer may withhold payment of the price. Invoices shall be sent to Buyer at the
following address:
EMAIL: [email protected]
| US MAIL: | Harley-Davidson Accounts Payable
PO Box 493
Milwaukee, WI 53201-0493 |
- TAXES. Buyer shall not be liable for, and Supplier shall pay, all federal, state, local and foreign
taxes, duties, customs, assessments and other fees and charges of any nature whatsoever imposed by any
governmental authority arising in connection with the sale, purchase, transportation, use or possession
of the goods and services, except those taxes expressly identified on the face of the Purchase Order as
being payable by Buyer.
- WARRANTIES.
- Supplier certifies, covenants, agrees, represents and warrants that all goods (and the materials,
parts or components comprising such goods) delivered pursuant to the Purchase Order shall be (i) new
and not used, remanufactured or refurbished, unless otherwise expressly specified on the Purchase Order,
(ii) free from defects in design, material and workmanship, conform to all specifications, instructions,
samples, drawings, and standards of quality and performance provided by Buyer, (iii) free from any and all
liens and encumbrances, (iv) suitable for their intended purpose and (v) fit and safe for consumer use and
comply with all applicable Federal Motor Vehicle Safety standards. If Supplier breaches this warranty,
Supplier shall, at Buyer's option, promptly repair or replace the nonconforming goods or refund any and all
amounts paid by Buyer to Supplier in respect of such nonconforming goods. Supplier shall be solely liable
for all transportation and storage costs incurred by Buyer or Supplier in connection with returning or
storing any nonconforming goods to be repaired or replaced by, or returned to, Supplier. After Buyer
notifies Supplier of any nonconforming goods, Supplier shall bear all risk of loss with respect to such
nonconforming goods.
- Supplier certifies, covenants, agrees, represents and warrants that all services shall be performed
(i) in accordance with all specifications and instructions provided by Buyer, (ii) in a professional and
competent manner in accordance with industry standards and to the satisfaction of Buyer and (iii) using
properly qualified and trained employees of Supplier; provided, however, that where the Purchase Order
specifies a particular standard or criterion for performance of such services, this warranty shall not
diminish that standard of performance; provided, further, that Supplier shall retain the discretion and
control with respect to the manner and means of performing such services and shall at all times remain an
independent contractor. If Supplier breaches this warranty, Supplier shall, at a minimum and at its own
expense, either: (y) re-perform the services to the satisfaction of Buyer; or (z) refund the fees paid
for said non-conforming services. Supplier will not use any third party material in the course of
providing the services, without such third party's express written consent.
- Supplier certifies, covenants, agrees, represents and warrants that (i) neither the goods and
services (including, without limitation, any software, firmware or equipment), nor the use thereof, will
in any way infringe or contribute to the infringement of any patent, copyright, trademark, service mark,
trade secret or other proprietary right in the United States or elsewhere, and no claim, action or suit
alleging any such infringement or contribution to infringement is pending or threatened against Supplier,
its employees, agents, suppliers or contractors; (ii) Supplier has full power and authority to grant all
of the rights granted by it in the Purchase Order; and (ii) any and all royalties, fees and costs for such
rights are set forth on the face of the Purchase Order, and except as otherwise expressly set forth on
the face of the Purchase Order, no royalties, fees or other costs are payable to Supplier or any third
party for any such rights.
- All of the certifications, covenants, agreements, representations and warranties of Supplier
together with its service warranties and guaranties, if any, shall run to Buyer and Buyer's affiliates
and customers. Buyer's approval of designs furnished by Supplier shall not relieve Supplier of its
obligations under this Section 7 or otherwise under the Purchase Order. The goods and services to be
provided under the Purchase Order are intended for the manufacture and sale of the products of Buyer
and its affiliates, and in which Buyer and its affiliates have built a substantial and valuable reputation
for quality and efficiency. As a result, any nonconforming goods or services provided by Supplier may
occasion special damage to Buyer and its affiliates. All rights and remedies of the Buyer and its
affiliates hereunder shall be in addition to any other rights and remedies provided at law, in equity,
or otherwise.
- CHANGES. Buyer may at any time by written or electronic notice make changes within the general
scope of Purchase Order, including, without limitation, with respect to any one or more of the following:
(a) drawings, designs or specifications, (b) methods of shipments or packing, (c) quantities, (d) delivery
schedules, (e) place of delivery, and (f) instructions with respect to the rendition of services. To
the extent any such change increases or decreases the cost of, or the time required for, the performance
of the Purchase Order, Supplier or Buyer, as the case may be, shall be entitled to a reasonable and
equitable adjustment in the price and/or delivery schedule; provided, however, that under no circumstances
shall Buyer be responsible for any raw materials purchased by Supplier in excess of the quantities
released or for the fabrication of parts in advance of the lead times necessary to provide the goods
and services in accordance with the terms set forth in the Purchase Order. The burden of proving
entitlement to any adjustment under this paragraph shall be borne by the party requesting the adjustment.
Any claim for adjustment by Supplier under this paragraph must be made within thirty (30) days after
Buyer delivers the written notification of the change, and otherwise shall be deemed waived. Price
increases or extension of delivery schedules shall not be binding upon Buyer unless evidenced by a
Change Order issued and signed by an authorized officer of Buyer.
- BUYER'S PROPERTY. Buyer may from time to time deliver, or cause to be delivered, to Supplier
component parts, supplies, machinery, tools, dies, jigs, fixtures, patterns, equipment, raw materials, and
other property owned by Buyer (collectively, the "Buyer Property"). In addition, if Supplier manufactures,
purchases or otherwise acquires any machinery, tools, dies, jigs, fixtures, patterns or related equipment
in connection with the performance of the Purchase Order and charges Buyer for the use of such machinery,
tools, dies, jigs, fixtures, patterns or related equipment, (including, without limitation, through a tool
service charge), such machinery, tools, dies, jigs, fixtures, patterns and related equipment shall also be
and remain Buyer Property. Supplier shall use the Buyer Property only in connection with the provision of
the goods and services pursuant to the Purchase Order or in such other manner as Buyer may request in
writing from time to time. Supplier shall at all times store the Buyer Property (at no additional cost
to Buyer) in a secure, covered and locked area at the facility to which it is shipped or at such other
location as Buyer may approve in writing from time to time ("Designated Facility"). Such secure, covered
and locked area shall be in an area of the Designated Facility that is clearly marked as "Property of
Harley-Davidson" and is clearly separate from Supplier's or its other customers' parts, supplies,
machinery, tools, dies, jigs, fixtures, patterns, equipment, raw materials and other property. Supplier
shall not provide any of its employees, or any other person or entity, with access to the Buyer Property,
except for those employees of Supplier who have a definable need to access the Buyer Property to permit
Supplier to use the Buyer Property as authorized in the Purchase Order. Supplier shall not make any
change, modification or alteration to any Buyer's Property without Buyer's prior written consent,
which may be withheld in Buyer's sole discretion. Supplier shall make and affix such markings on
the Buyer Property as Buyer may request from time to time. Supplier shall protect and care for the
Buyer Property in the same manner as Supplier protects and cares for its own valuable property or
in such other manner as reasonably specified in writing by Buyer. Legal and beneficial title to the
Buyer Property shall at all times remain with Buyer. At no time will Supplier have any ownership rights
or other "rights" (as that term is used in §9-203(b) of the Uniform Commercial Code) in the Buyer
Property. Neither the Purchase Order nor the delivery of the Buyer Property to Supplier will constitute
a "consignment" or "security agreement, or create a "security interest," within the meaning of the
Uniform Commercial Code. Supplier authorizes Buyer to file financing statements and other documents
to protect Buyer's ownership rights in the Buyer Property. Supplier shall sign documents, send notices,
and shall also maintain a system under which the Buyer Property is clearly identified as Buyer's property
and is kept separate and distinct from any other property in Supplier's possession, and take such other
actions as Buyer may reasonably request to protect Buyer's ownership rights in the Buyer Property.
Supplier shall not transfer any interest in, or otherwise deliver possession of, the Buyer Property
to any person or entity other than to Buyer or such other person or entity as is designated by Buyer
in writing. At any time and from time to time upon Buyer's request, Supplier shall return all of the
Buyer Property to Buyer or such other person or entity as is designated by Buyer in writing, in any
case in accordance with the shipping instructions provided by Buyer. Supplier shall return the Buyer
Property in the condition in which it was received by Supplier, except for ordinary wear and tear in
the case of Buyer Property that constitutes machinery, tools, dies, jigs, fixtures, patterns or related
equipment, and except to the extent the Buyer Property is incorporated into goods provided to Buyer
pursuant to the Purchase Order or is consumed in the normal production of such goods. Supplier's
responsibility with respect to the Buyer Property shall be that of a bailee, and Supplier shall
indemnify, defend, and hold harmless the Buyer Indemnified Parties (as hereinafter defined) from and
against any loss of or damage to any Buyer Property that occurs prior to delivery of possession of the
Buyer Property to Buyer or such other person or entity as is designated by Buyer in writing. Supplier
shall maintain replacement cost property and casualty insurance covering all Buyer Property in Supplier's
possession and, upon Buyer's written request, will name Buyer as an additional insured and/or loss
payee and provide Buyer with a certificate of insurance representing the same. At any time and from
time to time during normal business hours, Supplier will permit Buyer to enter the Designated Facility
to inspect and, subject to Buyer's obligations under this Agreement, remove some or all of the Buyer
Property. Supplier will furnish to Buyer, at no additional cost to Buyer, such reports and statements
with respect to the Buyer Property in Supplier's possession as Buyer may reasonably request. Such
reports and such statements will contain such details and be furnished at such times and for such periods
of time as Buyer may reasonably require.
- INDEMNIFICATION.
- Supplier shall indemnify, defend and hold harmless Buyer and its affiliates, and its and their respective
directors, officers, employees, agents, insurers, customers, successors and assigns (collectively, the
"Buyer Indemnified Parties"), from and against any and all liabilities, damages and expenses (including,
without limitation, attorneys' fees and legal costs) that they, or any of them, may sustain or incur as a
result of (i) any actual or alleged breach of any representation, warranty or covenant made by Supplier in
the Purchase Order, including, without limitation, Section 12 hereof, (ii) any actual or alleged claim that
the goods or services provided to Buyer under the Purchase Order, or that the operation, possession or use
of the Deliverables or receipt of Intellectual Property Rights, infringes upon any third party's Intellectual
Property Rights (an "Intellectual Property Infringement"), or (iii) any actual or alleged injury to or
death of any person, or any actual or alleged damage to or loss of any property, arising out of (x) any
goods in the possession or under the control of Supplier, its employees, agents, suppliers or contractors,
(y) any services performed by Supplier, its employees, agents, suppliers or contractors or (z) the
negligent acts or omissions or intentional misconduct of Supplier, its employees, agents, suppliers or
contractors.
- In addition, in the event of an Intellectual Property Infringement, Supplier will be required at its
own expense and option either to: (i) procure the right for Buyer and its affiliates to continue using
the goods or services; (ii) make such alteration, modification or adjustment to the goods or services
so that they become non-infringing without incurring a material diminution in function in Buyer's
reasonable estimation; or (iii) replace the good or services at no cost to Buyer with non-infringing
substitutes provided that the substitutes do not entail a material diminution in function in Buyer's
reasonable estimation. If none of the foregoing is commercially reasonable, Buyer may return the
infringing good or service and Supplier will promptly refund the sum of all payments made by Buyer
hereunder for such good or service, and any good or service, dependent thereon, within thirty (30)
days of such return.
- INSURANCE. For a period commencing on the date of the Purchase Order and expiring three (3)
years after delivery of the goods and performance of the services, Supplier, at its sole cost and expense,
shall procure and maintain the insurance coverages and coverage levels, in such amounts, under such forms
of policies, upon such terms, for such periods and written by such companies, as reasonably required from
time to time by Buyer to insure the Buyer Property and/or to protect Buyer from Supplier's failure to
comply with its indemnification and other insurable obligations under the Purchase Order, including, at
a minimum, those insurance coverages set forth in other parts of the Purchase Order. In all cases, such
insurance policies shall provide for the waiver of the insurer's right of subrogation against Buyer and
Supplier. All policies of insurance shall include Buyer as an additional named insured and provide for at
least thirty (30) days' prior written notice of cancellation or modification to be given to Buyer. At any
time and from time to time upon Buyer's request, Supplier shall promptly provide Buyer with certificate(s)
of such insurance or other evidence satisfactory to Buyer as to Supplier's compliance with this paragraph.
Supplier's compliance with this paragraph shall not release Supplier from, or limit in any way, Supplier's
obligations or liabilities under the Purchase Order.
- CONFIDENTIALITY. Supplier acknowledges that prior to or during performance of the Purchase Order,
Supplier may be given access to, or may otherwise acquire, obtain or develop, information and data,
including engineering data, technical data, customer information and pricing information, equipment,
tools, gauges, patterns, designs and drawings that is proprietary to Buyer or otherwise is comprised of
components, designs or data that is proprietary to Buyer (collectively, the "Buyer Proprietary Information,
Tools and Designs"). Supplier shall not (a) use any of the Buyer Proprietary Information, Tools and
Designs for any purpose other than performance of its obligations under the Purchase Order; or (b)
disclose or make available any of the Buyer Proprietary Information, Tools and Designs to any person
or entity other than those of its employees or agents who have a definable need to have access to such
Buyer Proprietary Information, Tools and Designs in order to allow Supplier to perform its obligations
hereunder. The obligations of Supplier under this Section 12 are continuing and shall survive the
completion or earlier termination of the Purchase Order, and are also binding on Supplier's employees,
officers, directors, agents, advisors and affiliates. Upon expiration or termination of this order,
Supplier shall return all such Buyer Proprietary Tools, Designs and Data, including copies thereof,
to Buyer or make such other disposition thereof as may be directed or approved by Buyer in writing.
Supplier will not make any press release, publication, advertisement, or other type of announcement
arising out of or otherwise relating to the Purchase Order without Buyer's prior written approval.
In addition, Supplier shall not use any of the Buyer Marks (as defined below) or identifying descriptions
in any publication, broadcast, advertisement, promotions or other public or private document or any other
type of announcement without Buyer's prior written consent.
- DRAWINGS AND OTHER INFORMATION. Buyer shall be free to use all drawings (including, without
limitation, proprietary drawings), plans and other information delivered by Supplier pursuant to the
Purchase Order to the extent reasonably necessary to install, operate, maintain, repair and/or perform,
and/or make or have made repair or replacement parts for, the goods or services, without additional
compensation to Supplier. In addition to the other requirements set forth in the Purchase Order, Supplier
shall continue to provide to Buyer, without cost, all improvements to the design of, and any software
incorporated in or otherwise delivered as part of, the goods and services. Supplier's compensation for
any design work, drawings (including, without limitation, proprietary drawings), plans and other tasks
required in connection with the performance of Seller's responsibilities under the Purchase Order is
included in the price set forth on the Purchase Order.
- INTELLECTUAL PROPERTY.
- For purposes of this Agreement:
- "Intellectual Property Rights" or "Intellectual Property" as the context requires, means
all of the following worldwide intangible legal rights, whether or not filed, perfected, registered or
recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent
applications and patent rights, with respect to both utility patents and design patents, including
any and all continuations, divisionals, reissues, reexaminations or extensions thereof; (ii) mask
rights and rights associated with works of authorship, including but not limited to copyrights,
copyright applications, copyright registrations and moral rights; (iii) rights relating to the
protection of trade secrets and confidential information, including but not limited to rights in
know-how, technical data, specifications, techniques, industrial property, customer, vendor and
prospect lists and all associated information or databases and other confidential or proprietary
information, including without limitation any confidential or proprietary information disclosed by
one Party to the other; (iv) industrial design rights; (v) trademark rights and all related goodwill;
and (vi) any rights analogous to those set forth in the preceding clauses and any other proprietary
rights relating to intangible property; and
- "Deliverables" means the tangible items, including without limitation any and all finished or
draft documents, works in progress, reports, analyses, test results, field data, notes, plans,
metrics, designs, drawings, specifications, computer data and computer programming (including all
source code), any other data, inventions, discoveries, improvements, customizations, configurations,
interfaces, enhancements, modifications, patentable subject matter, writings, works of authorship,
copyrightable subject matter, ideas, concepts, information, techniques, know-how and show-how, whether
or not patentable, copyrightable or otherwise legally protectable, that Supplier may create as a result
of or in connection with the goods and services, together with all related Intellectual Property Rights
therein.
- All Deliverables are and will remain the sole and exclusive property of Buyer as
"works made for hire" pursuant to 17 U.S.C. §101 and § 201(b) for which Buyer is deemed the author
and copyright owner. To the extent that any Deliverables are not deemed "works made for hire," Supplier
hereby assigns, and agrees to assign, to Buyer all right, title and interest in and to any and all such
Deliverables, whether or not protected by statute, that are conceived, created, made, developed or acquired
by Supplier in the performance of its obligations under the Purchase Order. Supplier will cooperate with
and assist Buyer in the application for and the execution of any applications and/or assignments reasonably
necessary to obtain any patent, copyright, trademark or other protection for any portion or component of
the Deliverables as Buyer deems appropriate. Supplier will treat all Deliverables as Confidential
Information. Neither Buyer's ownership of the Deliverables and the Intellectual Property Rights therein,
nor the assignment of rights set forth in this Section 14(b), shall grant Buyer any rights in or to
Supplier's Intellectual Property beyond the license set forth in Section 14(d) and as otherwise expressly
set forth in the Purchase Order.
- All Provider Intellectual Property is and will remain the sole and exclusive property of Provider.
- Provider hereby grants to Buyer and its affiliates a perpetual, irrevocable, worldwide, non-exclusive,
royalty-free, fully paid-up right and license to make, have made, use, sell, reproduce, distribute, modify,
display, access, import, export and sublicense any Provider Intellectual Property therein as provided to
Buyer or incorporated in any Deliverables or services and as necessary for Buyer or any affiliate to
exercise its rights in and use of the Deliverables and services.
- In the event that any of the goods and services from Supplier include certain software embedded
therein, used therewith or relating thereto (the "Software"), then the following shall apply:
- Supplier hereby grants to Buyer and its affiliates a perpetual, irrevocable, world-wide,
non-exclusive license to use the Software for its business activities. For the purposes of this Section,
the term "use" means to copy, install, access, execute, operate, distribute, archive and run the Software
for test, development, production, archival, emergency restart, and disaster recovery purposes.
- In addition to any other warranties provided in the Purchase Order, Supplier further represents
and warrants as follows: (i) the Software does not contain any virus or similar code that may destroy,
modify, alter, or cause the destruction, modification or alteration, in whole or in part, of any of
Buyer's equipment, devices, software, or data; and (ii) the Software will materially conform to
Supplier's generally available documentation for the greater of (a) six (6) months (or such greater
period of time as may be provided in the Agreement) from the date of delivery to Buyer or (b) for so
long as Buyer purchase support and/or maintenance for the Software from Supplier.
- BUYER MARKS. "Buyer Marks" means any trademark, service mark, trade name, and other intellectual
property, including logos, licensed to Buyer or any of its affiliates or any of its approved agents or
contractors, by H-D U.S.A., LLC ("H-D USA"), including without limitation any HARLEY-DAVIDSON, HARLEY,
HD, H-D and H.O.G. marks. All Buyer Marks are the exclusive property of H-D USA and are licensed to
Buyer. Supplier acknowledges and agrees that Buyer and H-D USA shall retain sole and exclusive
ownership of all Buyer Marks and all goodwill and rights related thereto throughout the world.
Any and all logos, slogans, trademarks, service marks, design or graphics developed or created by
Supplier under the Purchase Order shall be considered Buyer Marks. Supplier agrees that it shall
do nothing inconsistent with this ownership and that any use of the Buyer Marks by Supplier shall
inure to the benefit of Buyer and H-D USA. Supplier shall not use any Buyer Mark in any manner
without the prior written consent of Buyer. Any permitted use by Supplier of Buyer Marks shall be
done with strict adherence to the most recent written guidelines provided by Buyer to Supplier.
Supplier shall submit the proposed use of any Buyer Mark to Buyer for Buyer's prior written approval
in each instance. Supplier agrees that nothing in the Purchase Order shall give Supplier any right,
title, or interest in any of the Buyer Marks other than the right to use the Buyer Marks in compliance
with the Purchase Order.
- COMPLIANCE WITH LAWS. Supplier hereby represents, warrants, certifies and agrees that all
work performed and all goods and services delivered to Buyer pursuant to the Purchase Order shall
be performed, provided, manufactured, produced, packaged, labeled, shipped, delivered, invoiced,
sold and - if required - registered in accordance and compliance with all applicable federal,
national, state and local laws, orders, rules, ordinances and regulations, including without
limitation the following (as each of the same may be amended from time to time) (unless and to
the extent Supplier has demonstrated to Buyer's reasonable satisfaction that Supplier is exempt
from any of the following):
- sections 6, 7, and 12 of the federal Fair Labor Standards Act, as amended, and regulations
and orders of the U.S. Department of Labor issued under section 14 of said Act;
- the Federal Motor Vehicle Safety Laws;
- the Federal Clean Air Act, Subchapter II, Emissions Standards for Moving Sources, 42 U.S.C. §§ 7521-7590;
- Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, Executive
Order 13496 and its notice posting requirements, and the Vietnam Era Veterans' Readjustment Assistance
Act of 1974, as amended (unless the amount owing from Buyer to Supplier under the Purchase Order is less
than $25,000); and
- all rules, regulations, and relevant orders of the Secretary of Labor relating to Executive Order
11246, as amended, the Rehabilitation Act of 1973, as amended, Executive Order 13496 and its notice
posting requirements, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended
(unless the amount owing from Buyer to Supplier under the Purchase Order is less than $25,000).
With respect to each shipment or other delivery of goods hereafter made by Supplier to Buyer,
Supplier hereby represents, warrants, certifies and agrees that all such goods are, as of the date of
such shipment or delivery, not a misbranded or banned hazardous substance within the meaning of the
Federal Hazardous Substance Act, as amended. In addition to the foregoing, Supplier agrees that it
shall have also implemented and maintained an acceptable pollution prevention and waste
minimization plan that, in the sole discretion of Buyer, satisfies all of the standards of the
industry in which Supplier operates. This plan shall also address shipping and packaging materials for
goods purchased by Buyer, and shall include environmental sustainability provisions satisfactory to
Buyer.
Without limiting the foregoing, Supplier hereby represents, warrants, certifies and agrees that it
shall comply with (to the extent applicable), and provide such cooperation as Buyer may request from
time to time to assist Buyer with regard to actions that Buyer determines to take in response to, the
requirements of (x) section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Action
relating to "Conflict Materials" and the related rules and regulations issued by the U.S. Securities
and Exchange Commission in connection therewith, (y) the California Transparency in Supply Chains Act
of 2010 and the related rules and regulations issued by any governmental authority in the State of
California in connection therewith and (z) similar laws, orders, rules, ordinances and regulations of
other jurisdictions.
- FAIR PRACTICES. Without limiting Section 16 above, Supplier shall comply, and shall
cause each of its employees, and approved agents, suppliers, and contractors to comply, with all a
pplicable federal, state, local and foreign laws, regulations, codes, orders and standards, including,
without limitation, the U.S. Foreign Corrupt Practices Act, as amended, during and in connection with t
he performance of the Purchase Order (in the case of Supplier's approved agents, suppliers, and
contractors, during and in connection with performance of their obligations to Supplier related to the
performance of the Purchase Order). Without limiting the generality of the preceding sentence, Supplier
shall remain, and shall cause each of its approved agents, suppliers, and contractors to remain, in
compliance with all environmental, health, safety and labor laws, regulations, codes, orders and standards
applicable to the operation and use of the facilities at which goods or services covered by the Purchase
Order are manufactured, stored or performed. In addition to its other obligations under the Purchase
Order, Supplier shall (a) conduct its business in an ethical and fair manner; (b) maintain facilities
for its workers that provide a safe and healthy environment; (c) provide wages and benefits that conform
to the prevailing industry standards; (d) not, directly or indirectly, exceed local work hour limits;
(e) not, directly or indirectly, use any child labor (i.e., workers younger than 16 years of age or the
compulsory age for school attendance) or purchase materials from any person or entity that uses child
labor; (f) not, directly or indirectly, use prison or other forced labor or purchase materials from any
person or entity that uses prison or other forced labor; (g) not, directly or indirectly, discriminate
on the basis of race, color, national origin, gender, religion, disability, age, sexual orientation or
similar factors that are unrelated to a person's ability to perform, or performance of, the applicable
task; and (h) cause its approved agents, suppliers, and contractors to comply with the provisions set
forth in items (a) through (g).
- PLANT RULES-To the extent any employees, and approved agents, suppliers, or contractors of Supplier
are required to enter Buyer's facility to perform Supplier's obligations under the Purchase Order,
Supplier shall cause such employees, agents, suppliers or contractors to abide by any applicable rules
that Buyer may have in effect or hereafter put into effect at such facility, including, without limitation,
rules relating to workers, safety, use of cameras, security and confidentiality procedures or requirements,
designated entrances, hours of work and the handling of equipment or materials.
- FORCE MAJEURE-Neither party shall be liable for any damage as a result of any delay in its performance
due to any cause beyond its own reasonable control, including acts of God, sabotage, fire, floods,
explosions, epidemics or quarantines, freight embargos, insurrections, occurrences commonly referred to
as terrorist attacks and any armed hostilities associated therewith, war and/or continuance of war, or any
similar events (but specifically excluding strikes, slowdowns or other work stoppages associated with labor
problems, none of which shall excuse any delay or default under the Purchase Order), provided, however,
that the party affected thereby gives the other party written notice of the occurrence of any such event
that is likely to cause any delay (such notice to be provided as promptly as possible and in any event
within twenty-four (24) hours after such occurrence), setting forth in the notice its best estimate of the
length of any delay, and provided further that such affected party shall use its best efforts to
expeditiously overcome the effects of such event and to resume performance. In the event of any such
excused delay, the time of performance shall be extended for a period equal to the time lost by reason of
the delay; provided, however, that if Supplier provides notice to Buyer under this paragraph and either the
notice contains an estimate that the delay resulting from the event will exceed ninety (90) days, or the
delay actually experienced as a result of the event exceeds ninety (90) days, Buyer may, at any time prior
to receipt of written notice from Supplier of the resumption of Supplier's performance, terminate the
Purchase Order without liability to Supplier.
- TERMINATION.
- Without limiting any other provision of the Purchase Order or Buyer's rights under applicable law,
Buyer may terminate the Purchase Order, in whole or in part, upon written notice to Supplier, (i) for
its own convenience at any time, or (ii) in the event Supplier (y) breaches any provision of the Purchase
Order, whether or not the breach is deemed "material," or (z) ceases to exist or makes an assignment for
the benefit of creditors, or fails or is unable to pay its debts as they become due, or becomes the subject
of any voluntary or involuntary bankruptcy, reorganization, liquidation or other insolvency proceeding,
or applies for or consents to the appointment of a receiver for any of its property.
- In the event Buyer terminates the Purchase Order (or any part thereof) for its own convenience
under Section 20(a)(i), Buyer shall pay to Supplier all reasonable out-of-pocket costs incurred by Supplier
in the performance of the Purchase Order (or the terminated part thereof) prior to such notice, as
evidenced by reasonable documentation. In the event Buyer terminates the Purchase Order (or any part
thereof) under Section 20(a)(ii), in addition to any other rights Buyer may have under the Purchase Order,
at law, in equity or otherwise, Buyer may procure or otherwise obtain, upon such terms and in such manner
as Buyer may deem appropriate, goods or services similar to those covered by the Purchase Order (or the
terminated part thereof), and Supplier shall be liable to Buyer for any excess costs of such similar goods
or services.
- Upon any termination of the Purchase Order (or any part thereof), whether pursuant to this paragraph
or otherwise, Supplier shall transfer title and deliver to Buyer or its designee, in the manner and to the
extent requested in writing by Buyer, such completed or partially completed goods, articles and materials,
parts, tools, dies, patterns, jigs, fixtures, plans, drawings, information and contract rights as Supplier
has produced or acquired in connection with the performance of the Purchase Order (or the terminated part
thereof), and Buyer shall pay to Supplier all reasonable out-of-pocket costs incurred by Supplier prior to
Buyer's delivery of notice of termination as a result of the production or acquisition of such completed
or partially completed goods, articles and materials, parts, tools, dies, patterns, jigs, fixtures, plans,
drawings, information and contract rights, as evidenced by reasonable documentation (provided that Buyer
has not previously paid such costs pursuant to the preceding sentence). Except as otherwise expressly set
forth in this paragraph, Buyer shall not be responsible to Supplier for any compensation, reimbursement,
profits or damages whatsoever as a result of any termination of the Purchase Order (or any terminated part
thereof). Supplier shall continue performance of the Purchase Order to the extent the Purchase Order is
not terminated by Buyer.
- Supplier understands and agrees that Buyer's business operations are dependent on the receipt and
use of the good and services, and that the inability to receive and use the good and services could result
in irreparable damage to Buyer. Therefore, Supplier agrees that in the event of any termination of the
Purchase Order for any reason, Supplier shall fully cooperate with Buyer in the transition to another
licensor of replacement or substitute good and services. In the event Buyer terminates the Purchase Order
under Section 20(a)(i), Supplier shall be paid at the rates set forth in Purchase Order, or as otherwise
mutually agreed to by the parties. Otherwise, such services shall be provided by Supplier at no additional
cost to Buyer. Buyer may seek specific performance of Provider's obligations under this Section 20(d), and
Supplier hereby waives any defense that damages are an adequate remedy. Compliance with this Section 20(d)
by either Party shall not constitute a waiver or estoppel with regard to any rights or remedies available
to the Parties.
- Sections 6, 7, 9, 10, 11, 12, 13, 14, 15, 20(d), 20(e) and 21 of the Purchase Order shall survive
any expiration or termination of the Purchase Order and may be enforceable by Buyer and its affiliates,
successors and assigns.
- MISCELLANEOUS.
- ENTIRE AGREEMENT. Upon effective acceptance by Supplier, the Purchase Order (including these
Terms and Conditions and any other documents referenced or incorporated into the Purchase Order or these
Terms and Conditions) shall constitute the entire agreement between the parties (except for any additional
warranties given by Supplier) with respect to the purchase and sale of the goods and services identified
herein, superseding any and all previous communications and negotiations, whether oral or in writing.
These Term and Conditions are hereby incorporated in their entirety into the Purchase Order, and
references in these Terms and Conditions to the Purchase Order shall be deemed to mean the Purchase
Order incorporating these Terms and Conditions. Buyer hereby provides notice of objection to and
rejection of any additional or different terms or provisions (except additional warranties given by
Supplier) in any quotation, acknowledgment, invoice or other form or correspondence supplied by Supplier;
such additional or different terms or provisions are hereby deemed to be material alterations and no such
additional or different term or provision (except additional warranties given by Supplier) shall become
part of the agreement between the parties. In the event of any conflict at any time between any provision
contained in the Purchase Order (including these Terms and Conditions) and any term or condition or
attempted limitation of warranty set forth in any communication from Supplier, it is agreed by Supplier
that such provision in the Purchase Order (including these Terms and Conditions) shall control such
conflict and govern the purchase contemplated by the Purchase Order.
- GOVERNING LAW. The Purchase Order shall be construed and interpreted exclusively in accordance
with the laws of the State of Wisconsin, U.S.A., excluding conflict of laws principles. THE RIGHTS AND
OBLIGATIONS OF BUYER AND SUPPLIER UNDER THE PURCHASE ORDER SHALL NOT BE GOVERNED BY THE 1980 U.N.
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
- GOVERNING LANGUAGE. The Purchase Order shall be construed and interpreted in accordance with
the English language only, which language will be controlling in all respects. No translation, if any,
of the Purchase Order shall have any force or effect in the interpretation of the Purchase Order or in
the determination of the intent of Buyer or Supplier.
- CONSENT TO JURISDICTION. Supplier agrees that all actions or suits arising out of the Purchase
Order shall be brought, heard and determined exclusively in either the Milwaukee County Circuit Court
for the State of Wisconsin, U.S.A. or the United States District Court for the Eastern District of
Wisconsin, U.S.A., and Supplier consents to personal and subject matter jurisdiction and venue in such
courts and waives and relinquishes all right to attack the suitability or convenience of such venue or
forum. Supplier waives personal service of any and all process upon it in any such action or suit and
consents to all such service of process made by mail or by messenger directed to it at the address
specified on the face of this document. Supplier acknowledges that all directions issued by the forum
court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable
in all jurisdictions and countries.
- AMENDMENTS. The Purchase Order may not be modified or terminated orally, or by any course of performance,
dealing, trade, or any course of conduct, and no modifications, amendments or changes to the Purchase
Order shall be valid and binding unless made in writing and signed by an authorized officer of Buyer.
- NON-WAIVER OF RIGHTS. No waiver by Buyer of any of the provisions of the Purchase Order shall be
effective unless explicitly set forth in writing and executed by an authorized officer of Buyer. Except
as expressly otherwise set forth in the preceding sentence, no action taken pursuant to the Purchase
Order shall be deemed to constitute a waiver by Buyer of compliance with any representations, warranties
or covenants made by Supplier in the Purchase Order. The waiver by Buyer of a breach of any provision
of the Purchase Order shall not operate or be construed as a waiver of any prior or subsequent breach.
- RELEASE OF INFORMATION. Supplier agrees that prior to the issuance of any publicity, or publication
of any advertising, which in either case makes reference to the Purchase Order, or to Buyer, Supplier will
obtain the written permission of Buyer with respect thereto (which permission Buyer may withhold in its sole
discretion).
- SUBCONTRACTORS. Supplier may engage subcontractors to assist Supplier in meeting its obligations
under the Purchase Order, provided that the following conditions are met:
- Supplier remains responsible to Buyer for the obligations and liability of each subcontractor;
- Supplier hereby unconditionally guarantees to Buyer the complete and timely performance of all of
each subcontractor's obligations under the Purchase Order;
- Supplier requires each subcontractor to enter into confidentiality agreements regarding Buyer
Proprietary Information, Tools and Designs, the terms of which at least meet Provider's obligations
required under Section 12;
- Supplier obligates each subcontractor to assign all of subcontractor's right, title and interest
in and to any and all such work product produced in providing the goods or performing the services to
Supplier to ensure Buyer 's ownership of all goods and services under the Purchase Order and obligates
each subcontractor to cooperate with and assist Buyer, at Buyer 's expense, in securing any documents
necessary or desirable to register or otherwise protect any such rights; and
- Supplier submits each subcontractor to Buyer for Buyer's review and approval (not to be unreasonably
withheld) prior to any such subcontractor commencing any services under the Purchase Order and promptly
removes same from the services at Buyer's request.
- ASSIGNMENTS. Except as permitted under Section 20(h), Supplier shall not assign or
otherwise transfer any of its rights or obligations under the Purchase Order, in whole or in part,
voluntarily or by operation of law, without the prior written consent of Buyer; any purported assignment
or transfer in violation of this provision shall be void. Buyer may assign its rights and obligations
under the Purchase Order, in whole or in part, voluntarily or by operation of law, without the prior
written consent of Supplier. The Purchase Order is binding upon, and shall inure to the benefit of, Buyer
and Supplier and their respective permitted successors and permitted assigns.
- NON-EXCLUSIVE RIGHTS. The rights and remedies set forth in any provision of the Purchase Order
shall be in addition, and without prejudice, to all other rights and remedies to which Buyer may be
entitled under any other provision of the Purchase Order, applicable law or otherwise, including, without
limitation, any right to specific performance or injunctive relief.
- HEADINGS. The heading at the beginning of each numbered section hereof have been inserted for
ease of reference only and are not part of the Purchase Order.
- NOTICE OF LABOR DISPUTE. Whenever any actual or potential strike, slowdown or other work stoppage
associated with labor problems delays or threatens to delay the timely performance of the Purchase Order,
Supplier shall immediately give Buyer written notice thereof, which notice shall include all relevant
information with respect thereto and Supplier's best estimate of the length of any such delay.
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