Purchase and Order Terms and Conditions Viega LLC

Terms and Conditions - May 24, 2019

I.  Prevailing Terms and Conditions:

1. Viega LLC orders are subject exclusively to the following terms and conditions.  Alternate terms and conditions shall have no legal validity even if Viega LLC does not contradict them explicitly.  The Suppliers accept these Terms and Conditions upon accepting the order and/or the delivery.

2.  Delivery contracts (including but not limited to purchase orders, acceptance orders, and delivery requests) as well as amendments, supplements and other subsidiary agreements must be reached in writing by both parties.

3.  Viega LLC purchase orders are to be confirmed in writing or by EDI transaction within three (3) business days.  Under all circumstances, the Suppliers are obligated to notify Viega LLC immediately if they are not willing to or are unable to accept the order under the named Terms and Conditions.  Viega LLC reserves the right to retract the purchase order if confirmation is not received in the aforementioned period.  The Suppliers shall adhere precisely to Viega LLC’s purchase order, specifications, and prescribed requirements.  Any deviations must be presented and agreed to in writing by a Viega LLC designated agent.

4.  Any quoting and reviewing of changes is at the sole expense of the Supplier and any submission as a result is non-binding until agreed to in writing.

5.  Within the scope of what is acceptable for the Suppliers, Viega LLC may demand changes to the design and execution of the delivery item.  In this respect, any changes, particularly with regards to an increase or decrease in costs or lead times, shall be regulated appropriately.  All changes will be documented and signed by both Parties before implementation.

6.  The Suppliers are not entitled to pass contracts or orders on to third parties unless Viega LLC has given written permission to do so and all parties have executed a multiple party non-disclosure agreement.  In the event of an occurrence not agreed to, Viega LLC may terminate the contract or order in part or whole and receive appropriate compensation.

7.  Viega LLC is to only receive Preferred Pricing and Terms from the Supplier.  The Preferred Pricing is to be less than any of the Supplier’s other customers.  Viega LLC reserves the right to audit the Supplier to insure compliance.

II. Delivery, Packaging, Place of Delivery, Transfer of Risk:

8.  A valid delivery note, in English, must be issued for each delivery and must contain the purchase order number, delivery schedule with item details, Viega LLC material number and description, quantity, weight and Harmonized Tariff Schedule (HTS).  All international shipments will require Supplier to complete and submit the International Shipping Request Form (QMD 75.59.04), unless previously agreed to otherwise. The Products Safety Data Sheet (SDS) must also be included with the delivery note.

9.  Services rendered will require a written delivery/completion note delivered to the appropriate Viega LLC contact.

10.  Unless otherwise agreed to in writing, deliveries are made at Supplier’s risk and expense, free at the Viega LLC specified location including packaging, insurance and customs (DDP Incoterms 2010).  The risk of accidental damage of the goods shall be transferred to Viega LLC upon delivery of the goods at the destination.

11.  Whenever possible, reusable packaging and/or recyclable packaging materials are to be used.

12.  Packaging and labeling will be to Viega LLC specification.

13.  Only pallets made of hardwood or heat-treated wood may be used.

14.  If delivery dates are exceeded, Viega LLC is entitled to choose the type of dispatch; any resulting additional transportation costs are to be borne by the Supplier.

15.  Viega LLC reserves the right to dictate the use of its preferred carriers when applicable.

III. Delivery Dates, Delivery Delays, Force Majeure:

16.  Delivery dates, milestones, and deadlines are binding.  Changes are possible by way of mutual, written agreement, in which case Viega LLC’s business requirements are to be taken into appropriate account.  Receipt of the delivery by Viega LLC shall be decisive for adherence to the delivery deadline. If delivery free destination (standard INCOTERMS will apply) has not been agreed to, the Supplier shall notify Viega LLC Freight by email, at FREIGHT@viega.us, of the availability of the goods no later than twenty-one (30) days for international shipments and seven (7) days for domestic shipments prior to the end of the delivery deadline and make the goods available in good time taking into account the usual period for loading and dispatch.

17.  If the Supplier is in default of delivery, Viega LLC shall be compensated for damages.  If the delivery does not take place or not in the form as prescribed in an appropriate subsequent period set by Viega LLC upon delivery becoming due, Viega LLC shall be entitled to withdraw from the contract and/or claim compensation for non-fulfillment of the contract.  Viega LLC is not required to set a deadline and is entitled to withdraw from the contract if the Supplier has not provided the performance by the date specified in the agreement, furthermore Viega LLC may link the continuation of the interest in the performance to the timely occurrence of the performance or if particular circumstances exist which justify an immediate withdrawal from the contract after careful consideration of the interests of both parties.  Viega LLC may also demand compensation if the Supplier is in serious default and finally refuses to provide the performance or if particular circumstances exist which justify immediate assertion of a claim for damages after consideration of the interest of both parties.

18.  For all delayed deliveries, a performance penalty will be assessed at all due dates and/or milestones.  Supplier delinquency will result in a daily penalty of 0.5% of the total amount due at that date or milestone.  This penalty will continue to a maximum of 20% of the total purchase price.

19.  Force Majeure, industrial disputes and other unforeseeable and unavoidable events exempt the contractual partner from performance obligations for the duration of the disturbance and to the extent of its effect.  The contractual partners are obliged within the scope of what can reasonably be expected to provide necessary information and adjust their obligations to the altered circumstances.  If punctual delivery is essential, Viega LLC is entitled to withdraw from the contract in part or whole and demand compensation for any preliminary performances provided.  Default of delivery by sub-contractors does not constitute Force Majeure or an otherwise unforeseeable, unavoidable event.

IV. Invoices, Payments, Non-Assignment:

20.  Invoices (original single copy) are to be emailed to accounts.payable@viega.us.  Invoices must contain supplier number/name, delivery schedule number with item details, purchase order number and date and/or purchase order delivery request, unloading point, number and date of the delivery note and quantity of the invoiced goods.  Each invoice may only relate to one delivery note.

21.  Viega LLC Standard Payment Terms are to pay, at its discretion, invoices within 14 days with a discount of three percent (3%), NET 30.  Deviating individual agreements have priority.

22.  In the event of acceptance of early deliveries, maturity of invoices shall be calculated from the agreed delivery date.

23.  Payment shall be made at Viega LLC’s discretion either by bank transfer or another means of payment, preference being given to EFT with proper banking information.

24.  With the exception of extended reservation of ownership, the Supplier shall not be entitled without Viega LLC prior written agreement to assign claims against Viega LLC to third parties nor have such collected by third parties.

25.  Restocking Fees will not be applicable to Viega LLC purchases.

V.  Quality Assurance, Documentation, Goods Incoming and Outgoing Control, Changes in Production or Material:

26.  The Quality Assurance agreement and/or Performance Specification reached with the Supplier shall have priority.  In the absence of an agreement, Viega LLC’s Supplier Quality Requirements are to be observed.  New product/production will only be approved after passing the Supplier Production/Product Approval Process (SPAP).

27.  The Supplier is obligated to check their products for constant quality and safety in accordance with the latest technology.  The Supplier shall carry out and record outgoing goods inspections.

28.  Viega LLC is under no obligation to undertake incoming goods inspections.  Upon receipt, goods will only be examined for identity and obvious defects.  The values established by Viega LLC upon incoming inspection are decisive for quantities, dimensions and weights.

29.  Viega LLC reserves the right to reject any Products/Services that it deems non-conforming, defective, unsafe, unfit, or in any other way unsuitable for its purpose(s).  Viega LLC, at its discretion, reserves the right to require replacement of rejected Products/Services as well as payment of damages, at Supplier expense.

30.  The Supplier shall observe recognized technological standards, safety regulations and agreed technical data and standards for their deliveries.  Irrespective of this, the Supplier shall carry out regular quality inspections of the supplied goods.  Viega LLC and the Supplier will inform each other mutually about possibilities for quality improvement.

31.  If agreement has not been reached between the Supplier and Viega LLC on the type and scope of the inspections, as well as the inspection equipment and methods, Viega LLC is prepared, upon request of the Supplier, to explain the necessary inspections within the scope of its knowledge, experience and possibilities.

32.  The Supplier shall document in separate records when, in what manner and by whom the supplied goods have been inspected with regard to the characteristics requiring documentation and what the results were of the required quality tests.  The inspection documents are to be stored for ten (10) years at the Supplier’s location, and submitted to Viega LLC upon request.  The Supplier shall place their sub-contractors and suppliers under the same obligations within the scope of legal possibilities.

33.  Inasmuch as institutions, associations, etc. demand insight into Viega LLC’s production processes and Viega LLC’s inspection documents in order to check specific requirements, the Supplier agrees herewith to also grant the aforementioned the same rights on their own premises and provide them with all reasonable assistance in this respect.  The Supplier shall allow Viega LLC to undertake audits on their premises by prior arrangement.

34.  The Supplier shall notify Viega LLC, within 120 days of implementation and in writing of any and all production conversions and/or relocations, as well as changes to production processes, materials and sources of supply, and shall observe Viega LLC’s quality requirements according to the Supplier Production/Product Approval Process (SPAP).  No Supplier shipments will be accepted until completion of SPAP.  Previous versions, prior to said changes/revisions of Suppliers Products will continue to be available to Viega LLC during this process.

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:

36.  Supplier shall be compliant and confirm upon request with Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Conflict Minerals).

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 with the Supplier 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 unless agreed to between both parties, in writing. 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 effect 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.