Instant Brands LLC
Standard Terms and Conditions for Supplies and Services
1. Acceptance. This purchase order (“Purchase Order”) constitutes an offer on the part of the Instant Brands LLC and/or one or more of any affiliated entities (collectively, “Instant Brands“) to purchase the products or services set forth herein (the “Products” and/or “Services”) upon the conditions and terms and at the prices stated herein. The Instant Brands entity placing this Purchase Order is solely liable for its obligations under the terms herein and Seller agrees that its only recourse is against such entity and not its affiliated entities. The Purchase Order expressly limits Seller’s acceptance to the terms of the Purchase Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. Seller’s delivery of the items identified in this Purchase Order shall constitute Seller’s acceptance of all of the conditions, terms and prices stated herein and no deviations from the conditions, terms and prices provided by Seller will be valid or binding upon Instant Brands. Instant Brands is not obligated to any minimum purchase or future purchase obligations under this Order.
2. Price; Payment Terms.
(a) Unless otherwise specified, the price stated includes all charges and expenses of Seller including, but not limited to, packing, boxing, cartage and any and all applicable taxes and duties of Federal, State, provincial or local governments. Seller agrees to accept in lieu of any tax that may be included in this Purchase Order a tax exemption certificate or other evidence acceptable to the Federal, State, provincial or local government and to reduce the price as stated herein by the amount of such exempt tax per Instant Brands’ standard payment terms.
(b) If additional payments will be or have been made to Seller by Instant Brands for items such as assists (e.g., tooling, molds, dies, materials or components provided for incorporation in or for use in the manufacture of the finished merchandise), royalties, packing, selling commissions or other incidental charges, such additional value(s) should be separately itemized and identified on the commercial invoice. Seller invoices must not indicate a nominal value for goods but shall indicate the invoice price charged to Instant Brands.
(c) Instant Brands will pay all invoices for accepted Products and Services in U.S. Dollars per its standard payment terms unless otherwise agreed to in writing. Instant Brands’ standard payment terms are 2/60 net 90: all invoices for accepted Products and Services will be paid within ninety (90) days of the invoice date, Seller to grant Instant Brands a 2% discount on invoice total for invoices paid within sixty (60) days of the invoice date.
(d) Instant Brands shall independently determine the prices at which it sells finished Products to its customers.
(a) Seller’s quoted price will be subject to proportional changes (“Price Adjustments”) in six (6) month intervals based on currency fluctuations. The semi-annual Price Adjustment dates shall be each January 1 and July 1.
(b) If, in any 60-day period during the prior six month period, the Simple Moving Average of the U.S. Dollar exchange rate to the Chinese Yuan (RMB) shall have decreased by more than five percent (5%), as compared to the base exchange rate (agreed to be the 12-point monthly average exchange rate of USD$ : RMB¥ from date of purchase) for the first Price Adjustment, and thereafter as compared to the updated exchange rate used in the last previous Price Adjustment, Seller’s quoted price to Instant Brands for Products or Services shall be reduced in proportion to such changes.
(c) Relevant changes in the currency exchange rate shall be determined by reference to www.exchangerate.com.
(a) Time of delivery is of the essence of this contract, and if delivery is not made on or before the specified date of delivery, Instant Brands reserves the right, without liability, to return same at the Seller’s expense.
(b) Instant Brands reserves the right to designate carriers and routes when freight charges are the responsibility of Instant Brands. Seller agrees to reimburse Instant Brands for excess freight charges incurred as a result of failure to follow such designations by Instant Brands.
(c) Commercial Invoice Requirements. Seller shall furnish Instant Brands with a written commercial invoice containing, at a minimum, the following information: (i) reference to this Purchase Order; (ii) Seller’s name and address; (iii) Instant Brands’ name and address; (iv) country of export; (v) detailed description of merchandise in English, including the product name/code; (vi) accurate quantities and weights of the merchandise shipped; (vii) actual purchase price, including all elements of the amount paid or payable by Instant Brands; (viii) the currency in which the sale was made; (ix) all charges, costs and expenses associated with the merchandise, including freight, insurance, commission, containerization and packing, unless the cost of packing, containerization and inland freight are already included in the invoice price; (x) all rebates or discounts; (xi) the country of origin (manufacture) of the goods; (xii) the Harmonized Tariff Schedule number of the goods (if known), (xiii) the agreed upon terms of sale as noted in this Purchase Order, and (xiv) all goods or services furnished for the production of the merchandise (e.g., “assists”) not included in the invoice price for the first shipment of goods destined for the customs territory of the United States (or other applicable jurisdiction) incorporating the goods or services, unless Instant Brands directs otherwise in writing.
(d) Invoices shall be submitted electronically to Instant Brands’ Accounts Payable Department via e-mail at email@example.com.
5. Law Governing; Venue; Conflicts in Terms. The Purchase Order, and the resolution of any disputes arising out of it, shall be governed by and interpreted in accordance with the laws of the State of Illinois, USA, and the Federal law of the United States of America. Any dispute arising out of this Purchase Order shall be venued exclusively in the state court of competent jurisdiction in DuPage County, Illinois or the Federal Court in Chicago, Illinois. Unless otherwise specifically agreed to in writing and signed by both parties, any and all terms and conditions specified by Instant Brands and noted on the face of this Purchase Order or any attachments thereto, shall take precedence over any pre-printed terms herein which may be inconsistent therewith. In no event will any terms on any Seller document regarding the order and delivery of the goods or services specified herein (whether pre-printed or not) take precedence over the terms of this Purchase Order or be given effect by Instant Brands.
6. Indemnity. Seller agrees to indemnify and hold Instant Brands harmless from and against any and all liabilities, damages, penalties, judgments, suits, expenses and other costs (including reasonable attorneys’ fees and expenses) of any kind or nature arising out of or related to:
(a) Seller’s performance or nonperformance of its duties under the Purchase Order,
(b) any act, omission or default of Seller or its employees and/or contractors,
(c) any breach by Seller of the warranties provided hereunder,
(d) Seller’s failure to comply with any applicable laws of the following jurisdictions:
(i) where the Products are manufactured;
(ii) where the Services are provided; and/or
(iii) where Instant Brands advises Seller the Products will be distributed or sold.
(d) Seller’s failure to follow any product specifications provided by Instant Brands, and
(e) any liability resulting in any way from any product delivered by Seller to Instant Brands hereunder. This indemnity shall survive the termination of this Purchase Order.
7. Packing and Shipping. All articles are to be suitably packed or otherwise prepared for shipment so as to meet requirements for obtaining lowest transportation rates and to meet carrier’s requirements. No charges will be allowed for packing, crating or cartage unless stated in the Purchase Order. Each container must be marked to show order number, and itemized packing sheets must accompany each shipment or delivery.
8. Inspection. All Products shall be subject to inspection, testing and approval by Instant Brands before or after acceptance, at Instant Brands’ premises or any other location selected by Instant Brands. Products rejected as damaged, defective or otherwise not conforming in any way to a Purchase Order (including these terms and conditions) may be held or returned by Instant Brands to Seller at Seller’s risk and expense, including transportation and handling costs, and Instant Brands in any event shall be entitled to a full refund. Seller shall promptly reimburse Instant Brands for any and all costs incurred by Instant Brands to inspect or test such nonconforming Products or otherwise incurred by Instant Brands as a result of such nonconforming Products. Instant Brands’ acceptance, inspection, testing, approval and/or use of or payment for any Products shall not constitute a waiver of any rights or remedies (including rights or remedies with respect to any non-conformities later discovered) and shall not relieve Seller from any liabilities or obligations under its warranties or otherwise.
9. Risk of Loss. Seller assumes all risk of loss of or damage to any Products until the Products are finally accepted by Instant Brands pursuant to the terms of the Purchase Order and these terms and conditions.
10. Warranty. In addition and without prejudice to all other warranties expressed or implied by law, Seller warrants that all Products and Services covered by this Purchase Order will conform to drawings, specifications and other description and will be (a) of good quality and workmanship and free from defects, including without limitation, such defects as could cause personal injury or create a hazard to life or damage to property, and (b) fit for a particular purpose and suitable for use, manufactured, packaged for shipment, properly labeled and otherwise in accordance with all laws, regulations, standards, policies or directives of or within the United States (including, without limitation, the Consumer Product Safety Act, Fair Packaging and Labeling Act, Federal Trade Commission Act, Flammable Fabrics Act, Food, Drug and Cosmetics Act, and Hazardous Substances Act) as well as the countries of origin or exportation of Products and any country to which the Products will be shipped. All warranties, both expressed and implied, also constitute conditions and shall survive inspection, acceptance and payment and shall inure to the benefit of Instant Brands and its customers. Without limitation of any rights by reason of any breach of warranty or otherwise, Products that are not as warranted may at any time be returned to Seller at Seller’s expense for credit, correction or replacement, as Instant Brands may direct, and Seller shall provide conforming replacement goods as directed by Instant Brands and within the time frame required by Instant Brands, all at Seller’s sole cost and expense. Without limitation of any rights by reason of any breach of warranty or otherwise, with respect to Services that are not as warranted, Instant Brands shall have the right to engage a third party to repair or re-perform same, or, at Instant Brands’ option, to have Seller repair or re-perform same, in each case at Seller’s sole cost and expense, within the time frame required by Instant Brands. If Seller is a distributor or is otherwise the beneficiary of a third-party warranty that is transferrable to Instant Brands or its affiliates in connection with the sale contemplated by the Purchase Order, it shall cooperate with Instant Brands in enforcing any such warranty against the applicable manufacturer, service provider, or other warrantor.
11. Textiles. If this Purchase Order covers textile Products, then:
(a) Seller hereby guarantees that any textile fiber products specified herein are not misbranded nor falsely nor deceptively advertised or invoiced under the provisions of the Textile Fiber Products Identification Act and rules and regulations thereunder.
(b) Seller hereby guarantees that reasonable and representative tests made according to the procedures prescribed in Section 4(a) of the Flammable Fabrics Act show that fabrics used or contained in the articles of wearing apparel and fabrics otherwise subject to said Act covered by and in the form delivered under this document are not so highly flammable as to be dangerous when worn by individuals.
(c) Seller hereby guarantees that Seller has filed with the Consumer Product Safety Commission a continuing guaranty pursuant to the Flammable Fabrics Act.
12. Composition of Products/Product Content.
(a) Lead Free Products. All Products provided pursuant to this Purchase Order shall be “lead free” (defined as less than .01% or 100 ppm lead by weight), and by providing any Products pursuant to this Purchase Order, Seller is certifying that such Products are lead free as so defined. In addition, any surface coatings applied to any Products provided hereunder (including but not limited to paint) shall be lead free (defined as less than 90 ppm lead), and by providing any Products pursuant to this Purchase Order, Seller is certifying that all such surface coatings are lead free as so defined.
(b) Phthalate Free Products. No Products provided pursuant to this Purchase Order shall contain any of the following phthalates: di-(2-ethylhexyl) phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), diisonoyl phthalate (DINP), diisodecyl phthalate (DIDP) or di-n-octyl (DnOP), and by providing any Products pursuant to this Purchase Order, Seller is certifying that no such Products contain any of the aforementioned phthalates.
(c) Seller will provide product safety data sheets for the Products, and any additional written certifications of the requirements set forth above as requested by Instant Brands.
(d) Instant Brands may request test results from Seller from time to time which substantiate Seller’s certifications of the requirements set forth above.
(g) Instant Brands requires that all Products provided hereunder utilize the same compositions or formularies with respect to product specifications. Concurrently with acceptance of this Purchase Order, Seller shall provide Instant Brands with specifications describing the content of all Products provided hereunder. Seller must promptly notify Instant Brands of product or process anomalies, or changes in product definition, composition or content (e.g., should Seller utilize a different metal composition or fabric dye); identify all Products affected by such anomaly or change; and provide Instant Brands with revised specifications reflecting any changes to the content of the Products provided hereunder.
13. Intellectual Property Rights. Seller warrants to Instant Brands and its customers that the sale and use of the Products and Services referenced in this Purchase Order will not infringe any patent, trademark, copyright or other intellectual property right of any third party; that Seller will at its own expense defend any action, suit or claim brought against Seller, Instant Brands, or Instant Brands’ affiliates and assist in defense thereof, in which an infringement of any patent, trademark, copyright or other intellectual property right is alleged with respect to the sale or use of said goods; and that Seller will indemnify and hold harmless Instant Brands and its affiliates and customers from any and all losses, costs and damages for infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right because of the sale or use of said Products or Services. This provision shall not apply with respect to goods manufactured according to designs originated by Instant Brands and for which Instant Brands owns the related intellectual property rights.
(a) Instant Brands may at any time, by written order, make changes in drawings, design specifications, method of shipment or packing or time or place of delivery, require additional work or direct the omission of work covered by this Purchase Order. If any such change causes an increase or decrease in the price under this Purchase Order or in the time required for performance, an equitable adjustment shall be made and this Purchase Order shall be modified in writing accordingly. Any claim for adjustment under this provision must be asserted within ten (10) days from the date this change is ordered, and the amount of such claim must be stated in writing within thirty (30) days thereafter.
(b) Products or Services substituted or performed without Instant Brands’ authority may be returned or rejected at Seller’s expense.
(c) Instant Brands will not accept overruns or underruns unless such overruns and underruns are agreed to by Instant Brands in writing.
15. Materials, Tools and Data. Title to any material, dies, molds, jigs or tools furnished by Instant Brands to Seller for purposes of completing this Purchase Order shall remain with Instant Brands. Seller shall protect Instant Brands against all loss and damage of said property by full and complete insurance at Seller’s expense in an amount satisfactory to Instant Brands. If the cost of special dies, molds, jigs or tools involved in the manufacture of Products covered by this Purchase Order is amortized and included in the price hereunder, the same shall become the property of Instant Brands upon completion or termination of this Purchase Order. Drawings, designs and technical information and data furnished by Instant Brands shall remain Instant Brands’ property, shall be held in confidence by Seller, shall not be disclosed by Seller to others without Instant Brands’ written permission and shall be returned to Instant Brands upon completion or termination of this Purchase Order.
16. Certification and Testing. To the extent any product specifications or laws require any certification and/or testing of the Product provided hereunder, or certification is customarily provided under generally accepted industry practices, such as a “listing” issued by Underwriters Laboratories, Inc. for plug-in electrical products, testing results and applicable certifications issued in the name of Instant Brands or its applicable affiliate must be provided with each batch and/or shipment of product provided hereunder. Seller shall (a) not take any action that could undermine the integrity of the laboratory test data, and (b) assure that no undue influence be exerted on testing laboratories or third-party certification bodies.
(a) Compliance with Legal Requirements. Seller shall maintain quality assurance and legal compliance programs so as to assure that (i) Products shall meet Instant Brands’ specifications, descriptions and requirements as to appearance, performance, reliability, durability, safety, labeling, marking, packaging and compliance with any and all legal requirements; (ii) the facilities at which Products are being, or may be, manufactured or warehoused operate in compliance with any and all legal requirements; and (iii) the locations where Services are provided operate in compliance with any and all legal requirements.
(b) U.S. Customs & Border Patrol. Seller covenants and agrees to observe and comply, in the performance of this Purchase Order, with all applicable federal, state, provincial and local laws including but not limited to all country of origin marking requirements established by U.S. Customs and Border Patrol or other applicable authority, laws and regulations governing the importation of goods into the customs territory of the United States, laws of the jurisdictions where the Products are manufactured, the Services are provided, and where Instant Brands advises Seller the Products will be distributed or sold, or other applicable jurisdictions and any other laws specific to the Products or Services provided hereunder and Seller agrees to indemnify and hold harmless Instant Brands for and from any and all liabilities, expense, costs and damages which Instant Brands may be put to or incur or suffer as a result of Seller’s failure or omission so to do.
(c) Labor Protections. Seller covenants and represents that all Products and Services provided pursuant to this Purchase Order have been or will be produced or provided in compliance with the requirements of the Fair Labor Standards Act, which governs working standards, including, but not limited to, prohibition of child labor, appropriate working hours, rates of pay, and eligibility for overtime, and the National Labor Relations Act, which protects the freedom of association, including, but not limited to, the rights to self-organization, to form or join a labor organization, and to bargain collectively, among other protected rights.
(d) Discrimination, Abuse, & Harassment. Seller shall not discriminate in hiring, compensation, training, advancement or promotion, termination, retirement, or any other employment practice based on race, color, national origin, gender, gender identity, sexual orientation, military status, religion, age, marital or pregnancy status, disability, or any other characteristic other than the worker’s ability to perform the job. Seller shall treat workers with respect and dignity. Seller shall not subject workers to corporal punishment, or physical, verbal, sexual, or psychological abuse or harassment. Seller must not condone or tolerate such behavior by any of its partners or anywhere in its supply chain.
(e) Health & Safety. Seller shall provide a safe, healthy, and sanitary working environment and/or living condition, if applicable. Seller shall implement procedures and safeguards to prevent workplace hazards, and work-related accidents and injuries, including procedures and safeguards to prevent industry-specific workplace hazards, and work-related accidents and injuries. General and industry-specific procedures and safeguards include those relating to: (i) health and safety inspections; (ii) equipment maintenance; (iii) maintenance of facilities; (iv) worker training covering the hazards typically encountered in their scope of work; (v) fire prevention; and (vi) documentation and recordkeeping. Seller shall provide workers adequate and appropriate personal protective equipment to protect workers against hazards typically encountered in the scope of work. Seller shall ensure that its facilities, including those used for both production/manufacturing and living accommodations, meet all applicable building codes and construction standards, including having an evacuation plan, a sufficient number of emergency exit doors, adequate ventilation and lighting, a fire safety plan, and access to potable water and private toilet facilities.
(d) Vendor Code of Conduct. The Seller also represents that it has read, understood and agrees to abide by Instant Brands’ Supplier Code of Conduct, in effect as of the date hereof, a copy of which is available on Instant Brands’ website at https://corporate.instantbrands.com, as such Supplier Code of Conduct may be amended from time to time.
(e) Foreign Corrupt Practices Act. Seller expressly acknowledges and agrees that certain laws are applicable to Instant Brands, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977, 15 U.S.C. §78dd 1, et. seq., as amended (the “Foreign Corrupt Practices Act”), impose penalties on persons, firms and entities that participate directly or indirectly in making payments to any foreign government official, foreign political party or candidate, or foreign political office. Seller (i) acknowledges that it understands the provisions of the Foreign Corrupt Practices Act and agrees to abide thereby and (ii) represents, warrants and covenants that, in the performance of its obligations under this Agreement, Seller shall not offer or promise to make any payment in currency or property to any such government official, political party, political candidate or political office or any third person, firm or entity that in turn will make a payment to any such government official, political party, political candidate or political office. Any such offer or promise to make payment, or the making of any actual payment shall be disclosed to Instant Brands immediately upon the making of such payment, offer or promise.
18. Product Recall. When information reasonably supports the conclusion that a determined or undetermined number of Products fail to comply with mandatory or voluntary standards or contain defects or hazards that could cause a risk of death or bodily injury to or damage to the property of any person, Instant Brands may do whatever it deems necessary or is required or requested by any governmental authority, including, without limitation, locating, identifying and notifying customers and recalling Products. Upon any recall of the Products by Seller or Instant Brands, the recalled Products shall be repaired or replaced, or the purchase cost refunded, at the Seller’s expense, including without limitation, Seller’s payment of all costs and expenses incurred by Instant Brands in connection with the recall. Seller shall immediately notify Instant Brands in writing of any consumer reports, complaints, or other information that suggests the Products do not comply with applicable mandatory or voluntary standards or may have a defect that could create a risk of injury, regardless of whether or not bodily injury or property damage has occurred. Seller shall provide such notification and materials to Instant Brands at the following address and email: Instant Brands, Attn: Legal Department, 3025 Highland Parkway, Suite 700, Downers Grove, Illinois, USA 60515; and firstname.lastname@example.org.
19. Human Trafficking, Child Labor, and Forced Labor Certification. All labor employed by Seller must be voluntary. Seller certifies that it shall not support or engage in forced labor or human trafficking in any part of its supply chain. Seller ensures that it is and shall remain, throughout the term of this Purchase Order and as long as Seller is doing business with Instant Brands, in compliance with all laws, rules and regulations relating to human trafficking, child labor, forced labor, or slavery in all countries in which Seller does business.
20. Conflict Minerals. “Conflict Minerals” is defined herein as columbite-tantalite (coltan), cassiterite, gold, and wolframite, tantalum, tin and tungsten derivatives of such minerals, and any other minerals or their derivatives determined at any time by the U.S. Secretary of State to be financing conflict in any of the “Covered Countries,” defined as: the Democratic Republic of the Congo, any country sharing an internationally recognized border with such country, and any other country or region determined at any time by the U.S. Secretary of State to embroiled in conflict financed by trade in Conflict Minerals. “Recycled Metals” is defined herein as reclaimed end-user or post-consumer products, or scrap processed metals created during product manufacturing. Recycled Metals include excess, obsolete, defective and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of tin, tantalum, tungsten and/or gold; Recycled Metals do not include minerals partially processed, unprocessed or a bi-product from another ore. If any of the Products provided pursuant to this Purchase Order contain or are constituted of any Conflict Minerals, such Conflict Minerals either (a) shall not have originated from any of the Covered Countries, or (b) shall be from Recycled Metals. By providing any Products that contain or are constituted of any Conflict Minerals pursuant to this Purchase Order, Seller is certifying either (a) that such Conflict Minerals have not originated from any of the Covered Countries, or (b) that such Conflict Minerals are from Recycled Metals. If any of the Products provided pursuant to this Purchase Order contain or are constituted of any Conflict Minerals, Seller, before providing such Products to Instant Brands, shall notify Instant Brands in writing that such Products contain such Conflict Minerals and shall provide Instant Brands with (a) written proof that such Conflict Minerals have not originated from any of the Covered Countries or are from Recycled Metals; and (b) the full legal name(s) and location(s) of the facility or facilities which smelt(s) or refine(s) such Conflict Minerals. Seller shall provide such notification and materials to Instant Brands at the following address and email: Instant Brands., Attn: Legal Department, 3025 Highland Parkway, Suite 700, Downers Grove, Illinois, USA 60515; and email@example.com.
21. Non-Assignment. This Purchase Order shall not be assigned by Seller, and assignment of this Purchase Order, any interest therein or any payment due or to become due thereunder, without the prior written consent of Instant Brands, shall be void, except that Instant Brands may assign this Purchase Order, in whole or in part, to its parent, subsidiaries and/or affiliated companies.
22. Termination. Instant Brands may terminate all or any part of this Purchase Order at any time or times without cause upon thirty (30) days’ written notice to Seller without incurring any liability. Instant Brands may terminate all or any part of this Purchase Order immediately without incurring any liability upon the occurrence of any of the following causes:
(a) A material breach of any term of this Purchase Order by Seller, including, but without limitation, untimely shipments or shipments of goods which do not conform to the contract, Purchase Order or specifications.
(b) Assignment or attempted assignment of this Purchase Order in whole or in part by Seller without Instant Brands’ written consent.
(c) Any material adverse change in the financial condition of Seller which Instant Brands in good faith believes to impair the likelihood that Instant Brands will receive a timely and full performance of the contract.
If, after notice of termination of this Purchase Order for cause, it is determined for any reason that Seller was not in default, or that the default was excusable, the rights, obligations and liabilities of the parties shall be the same as if the notice of termination had been issued pursuant to the first paragraph of these termination provisions, and Seller shall have no other rights or remedies against Instant Brands for wrongful termination of the contract.
23. Force Majeure. Force Majeure shall mean any event or condition, not existing as of the date of this Purchase Order, not reasonably within the control of either Party, which prevents in whole or in material part the performance of such obligations or renders such performance commercially unreasonable. Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure: acts of state, any act of God, governmental action, export or import restriction, war, prolonged shortage of energy supplies, epidemics, pandemics, fire, flood, hurricane, tornado, typhoon, storm, earthquake, lightning, explosion and terrorist activities (“Force Majeure Events”). In the event that Instant Brands is unable to perform due to any Force Majeure Events, Instant Brands shall not be considered in breach of this Purchase Order or be liable for any loss or damage due to the failure or delay in its obligations. If the Force Majeure Event continues for a period of over ninety (90) days, Instant Brands may immediately terminate this Purchase Order without liability to Seller, upon giving written notice of termination to Seller.
24. Insurance. If this Purchase Order relates to the sale of Products, Seller shall at its expense purchase and maintain products liability insurance in an amount sufficient to satisfy any claims or liabilities which Seller might incur arising out of the manufacture, sale or delivery of any of the goods described in this Purchase Order (and in no event less than USD $1,000,000 per occurrence). Such products liability insurance policy shall provide coverage for the satisfaction of any liability of the Seller to Instant Brands resulting from operation of the indemnity provisions of this Purchase Order, or from other operation of law, as well as for the satisfaction of any liability of Seller to any third party or parties. Any insurance purchased by Seller to cover loss or damage to the goods in transit to Instant Brands shall be solely at Seller’s expense.
Unless otherwise agreed to in writing by the parties, if Seller performs any Services for Instant Brands on Instant Brands’ premises, Seller shall, at any time upon request, furnish Instant Brands with an insurance certificate(s) from its insurance carrier(s) naming Instant Brands as an additional insured, evidencing the existence of insurance coverage of the following kinds in at least the following amounts: (a) Workers’ compensation insurance as required by law and Employer’s liability insurance with limits not less than One Million Dollars (USD $1,000,000); (b) Comprehensive public liability insurance for personal injury (including death) and property damage with limits not less than Two Million Dollars (USD $2,000,000) for personal injury and property damage, including coverage for owned and non-owned automobiles and Seller’s contractual obligations; (c) General liability insurance with limits not less than Two Million Dollars (USD $2,000,000); and (d) where the Seller is a licensed service provider (e.g., an architect or engineer) Professional liability insurance with limits not less than One Million Dollars (USD $1,000,000).
25. Liens. All goods to be delivered by Seller hereunder and all property to be rendered to Instant Brands shall be free and clear of any and all liens and encumbrances whatsoever.
26. Limitation of Liability. Instant Brands’ liability is strictly limited to payment of the agreed price (and associated taxes, where applicable). IN NO EVENT WILL INSTANT BRANDS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THIS PURCHASE ORDER, EVEN IF INSTANT BRANDS IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER CLAIMED UNDER THIS PURCHASE ORDER, IN TORT OR ON ANY OTHER LEGAL THEORY. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 6, 10, 13 and 27 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
27. Confidential Information. Seller shall treat as strictly confidential all proprietary business information regarding Instant Brands or its affiliates that Seller receives or to which it has access in connection with the business relationship between Seller and Instant Brands. Seller’s obligation regarding Instant Brand’s proprietary business information shall last for a period of three (3) years, during which time Seller shall not disclose this information to any third party absent written consent to do so by Instant Brands. In no event and at no time may Seller use Instant Brands’ proprietary business information outside of the scope of its business relationship with Instant Brands.
28. Entire Agreement and Successors and Assigns. Unless otherwise agreed to in writing by the parties, this instrument contains all of the terms and conditions agreed upon, constitutes the entire agreement between the parties, and shall be binding upon their representatives, successors and assigns, if any.