35. The Products and/or Services shall in any case be considered
unsuitable if, within 1 year of delivery defects become apparent, unless
same is attributable to gross negligence on the part of Viega LLC,
intentional misuse or substantial failure to perform proper maintenance.
VI. Social Responsibility and Compliance:
Supplier shall be compliant and confirm upon request with Section 1502
of the Dodd-Frank Wall Street Reform and Consumer Protection Act
37. The Supplier shall only use such products, packaging and/or processes that comply with existing environmental protection regulations regarding production, operation and disposal (Such as, but not limited to, Toxic Substances Control Act of 1976 (TSCA) and the California Proposition 65 (Prop 65)). The Supplier shall ensure that the working environment for its employees is safe and healthy and that legal requirements are met. The Supplier shall ensure that neither they nor any companies affiliated to them engage in business practices that are in contravention of the regulations of the Children’s Rights Commission. The Supplier will respond to all compliance documentation requests made by Viega LLC.
VII. Complaints, Liability for Material and Legal Defects as well as Other Breaches of Duty, Liability Deadlines, Insurance Protection:
38. Complaints are deemed to have been made in good time if the Supplier is notified of obvious (apparent) defects immediately – within five (5) working days – from receipt of the goods. Complaints about non-apparent or hidden defects may also be made by Viega LLC at a later date, namely immediately – within five (5) working days – from discovery and ascertainment of the respective defect.
39. The Supplier is under obligation to convey to Viega LLC possession and ownership of the goods free of any material and legal defects.
40. Material faults exist in particular if the goods, at the time of transfer of risk, do not possess the agreed properties and/or are not suitable for the purpose prescribed by the agreement and/or do not contain the properties and/or applicability for the anticipated duration.
41. In the event of material and legal defects, as well as other infringements of duties, Viega LLC’s claims and rights shall be based on US federal and state Commercial Codes. The following is agreed to in addition to legal rights: If the Supplier fails to comply with its obligation to subsequent performance within an appropriate period set by Viega LLC, Viega LLC is entitled to undertake the subsequent performance itself or have it undertaken by a third party at the expense of the Supplier. This also applies for any necessary sorting costs. The definition of a deadline is not required if subsequent performance by the Supplier has proven unsuccessful or if it is unacceptable for Viega LLC or its customers. In the event of work on site or at the designated location being necessary in the case of subsequent performance where the goods have arrived in compliance with the terms and conditions, the Supplier is obligated to carry out or have carried out the subsequent performance at that location at its own expense.
42. If the goods are found to contain defects at the start of production (processing or installation), Viega LLC will provide Supplier with due opportunity for sorting or supplementary performance (repair or new supply) insofar as this is acceptable for Viega LLC due to urgency. If the defect is first found after commencement of production, the preceding clause (41.) shall apply subject to the condition that Viega LLC shall be entitled to demand compensation for any additional costs as a result thereof.
43. Viega LLC’s rights to claims as a result of material and legal defects, as well as other infringements of duties by the Supplier, shall be limited to a period of five (5) years as of delivery of the ordered goods/services to Viega LLC subject to any longer legislative periods or periods agreed to in individual cases and subject to the provisions in the following Paragraphs 44 and 45. The limitation period shall be extended by any periods during which there is a stay on limitation.
44. The Supplier shall exempt Viega LLC from all claims by its contractual partners and third parties in the event of claims being made against Viega LLC due to material defects or other infringements of duties, the grounds for which lie within the domain of the Supplier; in the event of claims for damages, however, only if the Supplier does not prove that they are not responsible for the defect or the infringement of duties. Viega LLC’s claims for damages and exemption from all damages, costs and expenses extend beyond the liability/limitation periods stipulated in Paragraph 36., however, up to a maximum of ten (10) years from the statutory commencement of the limitation period insofar as Viega LLC is to be held responsible for the goods purchased from the Supplier and the resulting damages, costs and expenses for grounds that lie within the domain of the Supplier. Claims resulting from infringements of duty by the Supplier notified by Viega LLC within the liability/limitation period shall become void at the earliest three (3) months after the date of the notification.
45. Claims and longer limitation periods in accordance with the legislation on product liability, as a result of unlawful action, malicious acts and on the grounds of a warranty shall remain unaffected in this respect.
46. The Supplier is required to store for a period of ten (10) years all design and production documents with regard to the supplied goods and to place these at Viega LLC’s disposal in the event of any claims against it.
47. The supplier agrees to take out business and product liability insurance with the coverage of $5,000,000.00 per insurance occurrence for personal injury and material damage. Upon Viega LLC’s demand, the Supplier shall provide proof of this coverage. This clause is not linked with a limitation to the Supplier’s liability.
VIII. Secrecy, Drawings, Specifications, Molds, Models, Tools:
48. The contracting parties agree to treat in strictest confidence all non-publicized business and technical details that come to their attention as a result of the business relationship with the other contracting party. Employees and sub-contractors are to be placed under the same obligation.
49. Drawings, molds, models, templates, tools, samples and similar items that Viega LLC placed at the Suppliers’ disposal are to be treated in the strictest confidence and may only be used for the fulfillment of Viega LLC orders and may not be copied and/or made accessible to third parties. These items remain Viega LLC property and are to be marked as Viega LLC property by attachment of Viega LLC’s company logo and asset number. Products manufactured in accordance herewith may not be handed over to third parties in a raw, semi-finished or finished state. The same applies for parts which the Supplier has developed in accordance with Viega LLC instruction.
50. If the Supplier manufactures molds, models, tools, machines, drawings, lithographs, data records and other data in the course of Viega LLC’s order, they are to be treated as strictly confidential in the same manner. It is agreed that these items become Viega LLC’s property as soon as final payment is made. The Supplier will hold these items in safekeeping for Viega LLC free of charge. Viega LLC is entitled to take possession of the item in the event of impending intervention by third parties or if application has been made for insolvency proceedings to be opened in respect of the Supplier’s assets. Upon termination of the business relationship, Viega LLC may demand that the items be handed over, if applicable upon payment of remaining remuneration.
51. Reference may not be made to the existing business relationship in information and advertising material without Viega LLC’s prior written approval.
IX. Industrial Property Rights:
52. The Supplier shall be liable for any claims that may arise, despite due contractual use of the delivered items, as a result of an infringement of industrial property rights and/or applications for the same. The Supplier shall exempt Viega LLC and its customers from any claims resulting from the use of such property rights. Claims for compensation shall only become void if the Supplier is able to prove that they are not responsible for the infringement of duty.
53. This shall not apply insofar as the Supplier has manufactured the items in accordance with the drawings, models, or Viega LLC description and details, and were not aware that industrial property rights were being violated as a result thereof.
X. Place of Fulfillment, Applicable Law, Court of Jurisdiction, Dispute Resolution, Indemnification:
54. The place of fulfillment shall be the agreed, named place of delivery by Viega LLC.
55. The contract and/or agreement shall be governed by and interpreted in accordance with the substantive laws of Colorado giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction and the parties expressly exclude the application of the 1980 United Nations Convention on contracts for International Sales of Goods.
56. Supplier submits to the jurisdiction of the federal and state courts of the United States of America for purposes of any legal actions and proceedings arising out of or relating to this agreement.
57. Any and all controversies or claims between the parties to this contract arising out of or relating to this contract shall be settled by arbitration held in Broomfield, Colorado before one (1) or more arbitrator(s), in accordance with the International Arbitration Rules then in effect with the American Arbitration Association and any judgment upon the award may be entered in any court in the state of Colorado. The arbitrator shall not have jurisdiction to impose punitive damages, but shall have the discretion to award costs, expenses, and legal fees incurred by the prevailing party as part of the award.
58. Supplier will indemnify and hold Viega LLC, its owners, agents, servants, officers, directors and employees, Viega LLC’s distributors, dealers, and all entities which sell Items into which the items are incorporated, and their respective customers, harmless against liability, costs, damages, losses, claims and expenses occasioned by or arising out of any claim for death, damage, which results from (a) any defect or alleged defect in the Item; (b) the Supplier’s breach of any term of the purchase order; (c) the fault or negligence of the Supplier.
XI. Final Provisions:
59. If contracting partners discontinues payment or if application is made for insolvency proceedings to be opened in respect of a contracting partner and those proceedings are not averted within one (1) month, the other contracting party is entitled to withdraw from the contract in respect of the non-fulfilled part of the contract and claim compensation for damages.
60. Should Supplier substantially change its business (acquisition, merger, restructuring, etc.), Viega LLC reserves the right in this case to open, review, re-negotiate and/or cancel any agreements.
61. The contractual language is English.
62. Unless agreed to in writing, the contractual currency is United States Dollars ($).
63. In the event of provisions to these terms and conditions and/or other agreements reached being invalid or incomplete, it shall have no affect on the validity of the contract as a whole. The contracting partners are under no obligation to replace or supplement the invalid/incomplete provision with an alternative provision of equivalent economic effect.