Terms & Conditions of Sale
Momentive Technologies as Buyer
These terms and conditions of sale (these “Conditions”) shall apply to any sale of products (“Products”) by a seller/vendor/supplier (“Seller”) to Momentive Performance Materials Quartz, Inc. d/b/a Momentive Technologies (“Momentive” or “Buyer”). The Buyer and Seller are collectively referred to as the “Parties” and each individually as a “Party”.
- Applicable Terms
- All sales by Seller to Buyer, whether initiated by written purchase order, electronic means, telephone or any other method, will be subject to the following: (i) if a formal agreement is then in effect between Buyer and Seller and applicable to such sale (a “Sales Agreement”), then any term in the Sales Agreement that conflicts with these Conditions of Sale (“Conditions”) will apply, and these Conditions will otherwise apply; and/or (ii) if no Sales Agreement is in effect, these Conditions, and the Product description and quantity specified in Buyer’s order as accepted by Seller, will make up Buyer’s complete contract with Seller.
- These Conditions may be modified only by the written agreement of Buyer and Seller. By selling Products to Buyer, Seller confirms its agreement with these Conditions, and agrees that, even if Seller sends Buyer another form of agreement or terms, or modifications to these Conditions, and Buyer does not agree in writing, these Conditions shall govern. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any sale of Products.
- Pricing; Tax
- Product prices are determined by the Sales Agreement then in effect, if any. In the absence of a Sales Agreement, prices are determined by Seller’s list prices in effect at the time of order. The price of Products includes all taxes, tariffs, storage, handling, packaging, and all other expenses and charges of Seller. Prices are not subject to increase.
- Buyer shall pay invoices within ninety (90) days, or other period as agreed in writing, from the first batch processing date, not to exceed one hundred and twenty (120) days, after Buyer’s receipt of a correct invoice.
- Seller is liable for and shall pay all taxes, impositions, charges, and exactions except for applicable sales, VAT/GST or similar taxes that are separately stated on Seller’s invoice. Prices shall not include any taxes, impositions, charges, or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption. If any tax included in the order was not required to be paid by Buyer, Seller shall notify Buyer and make a prompt refund to Buyer.
- Quantity; Forecast
- Quantities purchased by Buyer shall be as stated in the order, with no minimum purchase obligations. Title to Products shall pass to Buyer at the earlier of (i) payment by Buyer; or (ii) receipt of Products by Buyer per the delivery terms stated in the order. In the event of advance or progress payments, Seller shall reasonably identify or otherwise mark Products as Buyer’s property.
- Any estimates or forecasts of order volume or program durations are subject to change from time to time at Buyer’s sole discretion, with or without notice to Seller, and shall not be binding on Buyer. Unless otherwise stated in the order, Buyer makes no guaranty or commitment of any kind to Seller regarding Buyer’s requirements for Products. Buyer shall be entitled to withdraw any purchase order without any cost or liability before actual or deemed confirmation by Seller.
- For “blanket” or similar orders with no quantity specified, Seller shall deliver Products as scheduled by Buyer.
- Seller shall send a quotation to Buyer no later than fourteen (14) days after receipt of a request by Buyer. Any quotation submitted to Buyer shall be valid for no less than ninety (90) days. Such quotation shall include, at a minimum, the following information: (i) the Products; (ii) period of time during which the quotation is binding (no less than ninety (90) days), (iii) detailed breakdown of prices, including any discounts; (iv) applicable specifications; and (v) any other information Buyer could reasonably need in order to make a decision regarding the Products.
- Seller shall confirm each purchase order within five (5) days upon receipt of such order from Buyer. If Buyer receives from Seller neither a confirmation or denial of an order within five (5) days, the order shall be deemed confirmed by Seller.
- Delivery; Packing
- Time is of the essence in making deliveries under an order.
- Unless otherwise stated in the order, all Products shall be delivered in accordance with Incoterms 2020 FCA – to Buyer’s designated location. If Buyer pays for transportation, Seller shall comply with Buyer’s routing instructions, including choice of designated logistics carrier.
- At any time before delivery, Seller shall perform any change to an order that is reasonably requested by Buyer. In the event that such requested change affects the agreed dates or the price of ordered Products, Seller shall immediately inform Buyer thereof in writing before performing any such change. Any failure of Seller to inform Buyer hereof shall release Buyer of any payment obligation related to the implementation of any such change. Any changes shall be performed or implemented within a reasonable time following such request.
- Seller is responsible for the cost of boxing, crating, and packing. Seller shall prepare, at its expense, labels as specified by Buyer. Seller is liable for damage to Products caused by improper boxing, crating, or packing. Seller shall pay all additional freight costs if Seller needs to use an expedited shipping method to meet agreed delivery dates due to its own acts, omissions, or claims of force majeure pursuant to Section 14.
- Seller shall have no right to terminate or not deliver according to an order for any reason. In the event that Seller takes action, or fails to act, in a manner that disrupts or threatens to disrupt Buyer’s ability to produce (including but not limited to line downs, interruption of production, or shipping delays), Seller acknowledges and agrees that Buyer shall be entitled to pursue the remedies in Section 15.
- Payment Terms
- Buyer shall pay invoices within ninety (90) days, or other period as agreed in writing, from the first batch processing date, not to exceed one hundred and twenty (120) days, after Buyer’s receipt of a correct invoice.
- Changes to Orders
- If Buyer requires modifications to any aspect of an order, including drawings, designs, or specifications, the Parties shall negotiate an equitable adjustment, if any, in the form of a change order or amendment. Seller shall not make any changes without Buyer’s prior written consent. No claim by Seller for adjustment shall be allowed unless made in writing and received by Buyer within thirty (30) days from the date notice is received by Seller. Nothing in this clause shall excuse Seller from performance of an Order as changed, including during the pendency of any claim.
- Quality & Audit
- Seller may not make any change to any Products designs, processes, or procedures without Buyer’s prior written approval.
- Seller shall maintain a recognized and suitable quality assurance system for its Products and services. Buyer or is designated representative may enter, inspect and/or audit, upon reasonable notice, Seller’s plant, books, and records, to verify compliance with Buyer’s requirements and this agreement.
- Limited Warranty
Seller warrants and represents that (a) all Products shall: (i) conform to the specifications, standards, drawings, samples, descriptions, and revisions furnished by Buyer; (ii) be merchantable and free of defects in design, materials, and workmanship; (iii) be fit for the purposes intended by Buyer; (iv) be free of all liens, claims, and encumbrances, (v) be manufactured entirely with new materials and free from latent defects, (vi) be free from viruses, disabling code, and open source software, (vii) be genuine, new, and unused, and (b) any work shall be performed in a professional manner and consistent with best industry standards. - Indemnification
- Seller shall defend, indemnify, and hold Buyer harmless against any losses, liabilities, damages, claims, suits, actions, proceedings, subrogation, costs, and expenses including court costs and attorneys’ fees in connection with an order including: (a) death, injury, or damages to any person or property; (b) recall campaigns which in Buyer’s reasonable judgment are required; (c) counterfeit parts, including parts that have been copied or substituted without legal right or authority; (d) Seller’s use of Buyer’s machinery or equipment, where for such claim Seller shall assume sole responsibility; (e) actual or alleged infringement, direct or contributory, of intellectual property rights; (f) subcontractor performance; and (g) violation of law.
- If there is a claim that any Product, in the form in which Seller sold it to Buyer, infringes another person’s patent or other intellectual property right in the jurisdiction in which such sale took place, then (i) Seller will defend Buyer against such claim and will pay all damages and costs finally awarded to Buyer as a result thereof, and (ii) if any Product subject to such a claim is determined to infringe another person’s patent or other intellectual property right, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the Product or accept return of the Product from Buyer and refund the purchase price thereof.
- On receipt of notification, Seller shall assume responsibility for the defense of any claims, suits, actions, or proceedings for which Seller shall indemnify Buyer, provided that Buyer shall have the right to be represented and participate through its own counsel in the defense and resolution of any indemnification matters. The indemnification obligations of Seller are independent of warranty obligations of Seller. Seller may not settle or otherwise dispose of any such claims, suits, actions, or proceedings without the prior written approval of Buyer.
- Insurance
- Seller shall maintain appropriate insurance coverage, in accordance with best industry practices, with a reputable insurance company against all relevant losses, liabilities, and indemnities that may arise in connection with an order and Seller’s operations. Buyer may specify additional insurance coverage requirements applicable to an order. Such coverage shall not limit Seller’s liability under an order. Upon Buyer’s request, Seller shall provide Buyer with a copy of the insurance certificate evidencing coverage.
- Intellectual Property
- “Intellectual Property” includes any patent, trademark, trade secret, copyright, design, illustrations, drawings, calculations, know-how, or other proprietary right.
- Buyer retains all right, title, and interest in and to its Intellectual Property related to an order. Any license of Buyer Intellectual Property is granted to Seller solely for the limited right to permit Seller to perform its obligations under an order for the sole benefit of Buyer. Drawings and technical information are issued in confidence and may not be disclosed, reproduced, disseminated, or used by either party without the other party’s prior express written consent.
- Seller retains its Intellectual Property that existed before this order. Supplier grants Buyer a worldwide, nonexclusive, royalty free, irrevocable, perpetual license under its Intellectual Property to use, sell, repair, and reconstruct Products and copy, distribute, and create derivative works of copyrightable work product and deliverables.
- Seller hereby assigns to Buyer all right, title, and interest in and to all Intellectual Property in Products created for Buyer related to an order. Seller shall promptly disclose all Intellectual property owned by Buyer pursuant to Section 11.3, including all inventions, and shall execute any documents necessary to perfect Buyer’s ownership therein.
- Termination
- Without prejudice to any other rights of termination provided herein, Buyer reserves the right to terminate an order or any part thereof at its sole convenience. Further,
- The agreement, an order, or any part thereof, may be terminated immediate at any time, effective upon written notice under the following conditions:
- (a) if Seller defaults in the performance of any provision of an order, including late delivery or Seller’s failure to make reasonable progress toward completion of the order, and such default is not cured within seven (7) days; or
- (b) by either Party if the other Party commits a material breach of this agreement and such breach is not cured within thirty (30) business days of written notice of such breach, or if such breach is not reasonably subject to cure within thirty (30) business days, or if the Party in breach has not commenced a continuous good faith effort to cure the default; or
- (c) by either Party if the other Party ceases its business operations, makes a general assignment for the benefit of creditors, or becomes subject to insolvency or voluntary bankruptcy or receivership proceedings, or if bankruptcy or receivership proceedings are initiated against that Party and not lifted within thirty (30) days.
- Upon receipt of termination notice, Seller shall immediately cease all work and ensure all of its suppliers and subcontractors cease work. Seller shall be liable for, and pay to Buyer, any costs, including the cost for additional managerial and administrative services, in excess of the price for Products.
- In the event of a termination, Seller shall protect and preserve property in its possession where Buyer has an interest. Buyer is entitled to a refund of all monies paid to Seller for the terminated order.
- Supply
- Seller shall inform Buyer, in writing, before accepting any order in the event that Seller has made changes to the composition of the processed material or the construction design of supplies and Products previously provided to Buyer. Any such changes shall not be permitted without Buyer’s prior written approval.
- In the event of termination or expiration of an order, Seller shall have the absolute obligation to continue to provide Products in accordance with the terms of the order (including price) for a reasonable period of time, in any event not less than one (1) year, so as to permit Buyer the opportunity to transition the production of the Products to a third party and so as to avoid any interruption of production at Buyer’s facilities or the facilities of Buyer’s customers. Seller must reasonably cooperate in this transition of supply, including providing information and documentation regarding manufacturing process for Buyer Products, including on-site inspections, bill-of-material data, tooling and process detail, and sample of Products and components.
- Events Beyond Seller’s Control
- Neither party will be in default for any delay or failure to perform due to natural, civil, or political causes beyond its control and without its fault or negligence (“Force Majeure”).
- The following shall not constitute a Force Majeure event for Seller: (a) Seller’s inability to Sell Products at a more advantageous price; (b) increases in Seller’s production costs; (c) interruptions in Seller’s supplies, including if a supplier fails to supply Seller; (d) labor disputes or strikes at Seller’s facilities; or (e) epidemics.
- The Party affected by a Force Majeure event shall promptly provide written notice to the other party, explaining in detail the full particulars and expected duration of the event, and shall use its best efforts to remedy the event with as little impact to the other party as possible.
- Seller will make best efforts to make delivery of Products during an epidemic, including Seller payment for expedited freight costs to meet order delivery commitments.
- Prior to the delivery of Products, Buyer may cancel orders for reasons attributable to the outbreak of any epidemic. Buyer cannot be held liable, and Seller shall not be entitled to any damages or indemnifications resulting from an epidemic.
- Remedies
- The rights and remedies available to Buyer are cumulative and in addition to all other legal or equitable remedies. Buyer has the right to set-off against any amounts payable by Buyer or its affiliates to Seller or its affiliates.
- Monetary damages may not be a sufficient remedy for any actual, anticipatory, or threatened breach of an order and, in addition to all other rights and remedies that Buyer may have, Buyer shall be entitled to specific performance and injunctive equitable relief as a remedy.
- Buyer may reject Products that are nonconforming and return rejected Products without payment to Seller. Seller may not repair rejected Products unless Buyer authorizes repair in writing. Seller shall reimburse Buyer for all damages caused or required by Seller’s breach or by nonconforming Products.
- If Seller alleges a breach of an order by Buyer, Seller shall continue performance until such allegation is resolved.
- If any portion of an order invalid or unenforceable, the remaining portions of the order remain valid and enforceable.
- Confidential Information
- “Confidential Information” means all non-public, confidential, or proprietary information (whether communicated in writing, verbally, electronically or by any other means and whether communicated directly or indirectly), including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, and information in connection with these Conditions and the transactions contemplated therein, or any related agreement, which by its nature is intended to be for the knowledge of the receiving Party alone, and whether or not marked as “confidential” or “proprietary” or which is otherwise confidential, and all information concerning the business transactions and the financial arrangements of any Party with any person with whom that Party is in a confidential relationship with regard to the matter in question.
- Neither Party, including but not limited to its affiliated entities, owners, managers and employees shall, without the prior written consent of the disclosing Party, for any purpose other than the proper performance of its obligations under these Conditions make use of or disclose or permit the use or disclosure to any third party of any trade secrets or other Confidential Information, whether relating to the method of operation or business of the other Party or the Products which it may receive or obtain either directly or indirectly, or make any public announcement, communication or circular concerning the transactions to which these Conditions shall apply. This obligation shall remain in force 5 (five) years after fulfilment of the Products. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this clause.
- A disclosing Party has no liability or responsibility for errors or omissions in, or any decisions made by the receiving Party in reliance on any Confidential Information disclosed under these Purchase Terms. No warranties of any kind (whether express, implied or statutory) are made in connection with the Products as to the accuracy or completeness of the Confidential Information disclosed.
- This clause does not apply to information that Buyer can document is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.
- Seller may receive or have access to information relating to identified or identifiable individuals (“Personal Data”), including Buyer’s employees, temporary workers, contractors, consultants, customers, or suppliers. Personal Data, in whichever form, is of a very sensitive nature, and Seller shall keep Personal Data strictly confidential and use it (a) only within the limits expressly authorized by Buyer and for the limited purpose of Seller’s performance under an order, and (b) in accordance with all applicable laws.
- Seller shall operate and maintain an information and cybersecurity program, including administrative, physical, and technical safeguards, designed to protect against and prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of Confidential Information and Personal Data (“Security”). Upon the request of Buyer. Seller shall provide proof of its Security and submit its processing facilities for audit of the processing activities covered in an order. Such audit shall be carried out by Buyer or its authorized agents with the required professional qualifications and a duty of confidentiality.
- Seller shall immediately notify Buyer of any perceived, potential, or actual breach to Seller’s Security (a “Breach”), and provide a full description of the Breach, the impact, and all mitigation efforts. Seller will then promptly (a) investigate, remediate, and mitigate the effects of a Breach; and (b) provide Buyer with assurances reasonably satisfactory to Buyer that such Breach will not recur. If Buyer determines, in its sole discretion, that notices or other remedial measures are warranted, Seller will, at Buyer’s request and at Seller’s sole cost and expense, undertake such remedial actions or facilitate Buyer’s undertaking of such remedial actions.
- Seller shall not make any release regarding an order or use of Buyer’s trademark or trade name, including any public announcements or advertising.
- Assignment
- No assignment of any rights or delegation of any duties of Buyer shall be valid or binding unless such assignment or delegation is in writing and Seller provides prior written approval of such assignment or delegation.
- Governing Law
- The terms & conditions of this agreement, their interpretation and any contractual or non-contractual obligations arising out of or in connection with it are governed by and shall be construed in accordance with the laws of the country where Buyer (i.e., the affiliated entity, subsidiary, or holding company that enters into the agreement) has its registered office without regard to any conflict of law rules. Any dispute arising directly or indirectly out of the terms and conditions of this agreement shall be resolved exclusively by the competent courts in having jurisdiction over the area where the Buyer has its registered office.
- The Parties shall attempt good faith resolution of a dispute within thirty (30) days, during which time the Seller shall perform the order in accordance with Buyer’s instructions. If the Parties are unable to resolve the dispute within that period, the Parties shall submit to an appropriate dispute resolution procedure selected by Buyer. THE PARTIES EXPRESSLY WAIVE ANY RIGHTS TO A JURY TRIAL (IF APPLICABLE).
- Compliance with Law; Anti-Corruption; Export Control
- Seller shall comply with all applicable import and export laws. Seller shall assist Buyer in minimizing the costs of international transactions by providing documentation to support claims. Seller is responsible for all costs associated with import and export compliance, including obtaining and paying for licenses or authorizations, certificates of origin, and proper documentation for any import, export, or preferential duty claim. Any credits or refunds including tax, export, or trade credits belong to Buyer. Seller’s obligations under this clause shall survive the expiration or termination of this agreement.
- Seller and its suppliers shall comply with applicable national and international all applicable laws, including, without limitation, the U.S. Foreign Corrupt Practices Act, United Kingdom, and European Union, Organization for Economic Co-operation and Development (OEDC), and Council of Europe anti-bribery rules. Seller shall not take any action to support a boycott of any country unauthorized by the government of the US, UN, EU, UK, or any government and pursuant to applicable law, or otherwise take any action which will place Buyer or any associated company of Buyer in jeopardy of breaching or violating any such laws or regulations or interpretations thereof.
- Seller shall not directly or indirectly solicit, receive, or offer any form of bribe, kickback, or other corrupt payment or thing of value to or from any person or organization, including government agencies or officials, companies, or personnel of those companies.
- Seller and its affiliates shall at all times keep complete and accurate books and records, and all records and information that Seller provides to Buyer pertaining to an order shall be complete and accurate.
- If any Products are to be used on a U.S. Government contract, then all applicable FAR and/or DFARS flow-down obligations shall apply. Seller shall accept mandatory flow-down clauses at no additional cost to Buyer. Seller shall comply with the Defense Priorities and Allocation System (DPAS) Regulation (15 CFR 700) if the order is rated. Seller certifies that it, or Seller’s principals, are not debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by a federal agency.
- Seller acknowledges that the failure to comply with all applicable laws and/or Buyer’s policies will be deemed a material breach of this contract and shall entitle Buyer to terminate this agreement (in addition to any other remedies Buyer may have at law or equity). Seller agrees to indemnify, defend, and hold Buyer harmless from any breach of Seller’s obligations under this clause.
- General
- Neither course of performance or dealing, nor usage of trade, nor prior writings or agreements shall be used to qualify, explain or supplement any of these Conditions of Sale. The invalidity, in whole or in part, of any term herein, shall not affect any other term, each of which shall be enforced to the full extent permitted by law. These Conditions are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Conditions.’
- Seller and its suppliers shall comply with Buyer’s Supplier Code of Conduct and Seller shall provide all relevant information and proof of compliance upon Buyer’s request. Seller and its suppliers shall comply with Buyer’s environmental, health, and safety (“EHS”) requirements. If Seller fails to comply with Buyer’s requirements, Buyer may stop services and remove Seller from a Buyer location until Seller has taken appropriate corrective action. Seller shall be liable for all claims in respect of such stoppage.
- Seller and its suppliers shall comply with all applicable Product Stewardship Requirements regardless of the place Products are created or delivered to Buyer or the ultimate place Buyer’s own products or its customers’ products are sold or used. “Product Stewardship Requirements” include laws, regulations, industry standards and Buyer or Buyer’s customers’ requirements concerning: (a) chemical or materials composition, labeling, recycling, take back/end-of-life, and disposal; (b) product design for safety, energy efficiency, and recyclability, or similar life-cycle requirements; and (c) product packaging and transportation.
- Seller, at its cost, shall: (a) identify chemical and material names and quantities contained in Products; (b) identify chemical and material composition and information to allow safe use of Products; (c) complete any material declaration or similar information requests by Buyer; (d) complete required registration with regulatory agencies of chemicals or materials composition of Products; (e) propose alternate solutions to ensure continuity of supply if delivery of Products is prohibited; (f) cooperate with Buyer in evaluating Seller’s environmental impact per international or other standards defined by Buyer; and (g) provide Buyer with evidence that Products comply with Product Stewardship Requirements.
- Waiver.
- No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the other Party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Notices.
- All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on an order or to such other address that may be designated by the receiving party in writing. Notices to Buyer shall include a copy to: Momentive Performance Materials Quartz, Inc. d/b/a Momentive Technologies, 22557 West Lunn Rd. Strongsville, Ohio 44149, attention: Law Department. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Miscellaneous.
- This agreement constitutes the entire understanding between the Parties as to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the Parties.
- Amendments can only be made by written document signed by both Parties.
- Buyer may update these Conditions. Updated Conditions shall apply to all orders after the effective date of the updates.
- Seller may bring any dispute or claim against Buyer only in Seller’s individual capacity and not as a class action or representative action.
- Nothing in this agreement (i) creates a partnership between the Parties; (ii) establishes either Party as the agent of the other; or (iii) entitles either Party to commit or bid the other.
- The following sections will survive expiration or termination of the agreement: payment terms, intellectual property, confidentiality, disclaimer, indemnification, liability, miscellaneous, and any additional sections which by their nature are intended to survive any expiration or termination.
- Seller shall not assign, subcontract, or otherwise transfer any of its rights or obligations under an order unless agreed to in writing. Seller will impose these Conditions on any and all approved subcontractors and shall be liable for such subcontractors’ performance, actions, and omissions.
- Seller shall not make any release regarding an order or use of Buyer’s trademark, trade name, or listing Buyer as a customer of Seller, including any public announcement or advertising.
- Headings are for convenience only. The term “including” when used in these Conditions shall mean “including, but not limited to”.
