PURCHASE ORDER TERMS AND CONDITIONS
Effective Date: 1 July 2024.
1. ACCEPTANCE
1.1 The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the Navico Group entity identified in the Purchase Order (“Navico Group”) and the supplier
(the “Supplier”).
1.2 Navico Group expressly limits acceptance of this Purchase Order to the terms herein and rejects any different or additional terms, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing of such communication. Any such different or additional terms shall not form a part of the
Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on Navico Group’s agreement to such different or additional terms.
1.3 Supplier’s electronic acceptance, acknowledgement of the Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. Notwithstanding what precedes, any and all Purchase Orders placed by Navico Group shall be deemed accepted as is by Supplier unless Supplier explicitly rejects such Purchase Order within no more than five (5) calendar days from its date of emission by Navico Group. The Purchase Order supersedes any or all prior or contemporaneous oral or written communications with respect to the subject matter hereof. No modification, waiver, or amendment hereof shall be binding unless in writing and signed by Navico Group.
1.4 Notwithstanding the foregoing, if a separate fully executed master contract or other definitive agreement covering procurement of the Work described in the Purchase Order exists between Supplier and Navico Group, the terms of such master agreement shall prevail over any inconsistent terms herein.
2. DEFINITIONS
2.1 “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work) to be delivered on or before the Delivery Date
2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.
2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2.5 “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.
2.6 “Services” means the services that Supplier is to perform for Navico Group specified in the Purchase Order.
2.7 “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for Navico Group.
2.8 “Subcontractor” means a third-party performing Work under an agreement with Supplier (a “Subcontract”).
2.9 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors, and Subcontractors.
2.10 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the
Work.
2.11 “Work” means the Deliverables, Products, and Services specified in the Purchase Order, including any SOW.
3. DELIVERY
3.1 Time is of the essence in Supplier’s performance of its obligations as stated in the Purchase Order. Supplier will immediately notify Navico Group if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. Navico Group’s acceptance of Supplier’s notice will not constitute Navico Group’s waiver of any of Supplier’s obligations.
3.2 Save for instances of delay which are due to causes beyond the reasonable control and without the fault or negligence of Supplier, if Supplier fails to deliver Work more than 15 calendar days past supplier promise date as specified in the Purchase Order then without prejudice to any other rights it may have, Navico Group may upon written notice to Supplier: (i) cancel the Purchase Order in whole or part; (ii) refuse to accept any subsequent delivery of the Work which the Suppler attempts to make; (iii) recover from the Supplier any
expenditure reasonably incurred by Navico Group in obtaining the Work in substitution from another supplier; and (iv) claim damages for
any additional costs, loss or expenses incurred by Navico Group which are directly or indirectly attributable to the Supplier’s failure to deliver
the Work on the Delivery Date. The rights and remedies of Navico provided in this clause shall not be exclusive and are in addition to any
other rights and remedies provided by law, at equity, or under any applicable Purchase Order or SOW.
3.3 If Supplier delivers Work more than 15 calendar days after the Delivery Date, Navico Group may reject such Work.
3.4 Navico Group will hold any Work rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s return shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges Navico Group incurs on Supplier’s behalf. Navico Group may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which Navico Group does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges. Any Work which is not accepted by Navico Group or returned to Supplier under Section 8.3, and which is marked with any trademark (including, without limitation any logo), both registered and common law, will be destroyed by Supplier. In no event will Supplier deliver or sell any such Work to any third party.
3.5 Supplier will preserve, pack, package, and handle the Works so as to protect them from loss or damage and in accordance with Navico Group’s shipping requirements and guidelines, which are incorporated herein by reference. Without limiting the foregoing, Supplier shall observe the requirements of applicable local laws and regulations relating to hazardous Work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal.
3.6 Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the Navico Group part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
3.7 Unless Navico Group expressly instructs otherwise, Supplier will deliver all Work to Navico Group’s facility at the address set forth in the Purchase Order and such Work will only be accepted by Navico Group in normal business hours. Supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes, and insurance. Risk of loss passes to Navico Group only upon acceptance in accordance with Section 6.
3.8 The date for delivery shall be specified in the Purchase Order, or if no such date is specified, then delivery shall take place within 28 days of the issuance of the Purchase Order.
3.9 Where Navico Group agrees in writing to accept delivery by installments, the Purchase Order will be construed as a single Purchase Order in respect of each installment. Failure by the Supplier to deliver any one installment shall entitle Navico Group at its option to treat the whole Purchase Order as repudiated.
3.10 If the Works are delivered to Navico Group in excess of the quantities ordered, Navico Group shall not be bound to pay for the excess and will hold any such excess Works at Supplier’s risk and expense, returnable at Supplier’s expense under the same terms set forth in Section 3.4 unless the parties agree otherwise in writing. Notwithstanding the foregoing, Navico Group may, at its discretion, elect to keep such excess quantities, in whole or in part, and Navico Group will pay for such excess quantities in accordance with the terms and prices stated in the most recent applicable Purchase Order.
3.11 Deliveries shall be performed according to the relevant INCOTERM mentioned on the Purchase Order. Unless otherwise provided in the Purchase Order, the default INCOTERM applicable to the purchase of Products by Navico Group is DDP – Navico Group Location (INCOTERM 2020). Should the Products be delivered DDP according to these terms or the relevant Purchase Order, the Supplier acknowledges that it is and will remain responsible for any and all costs associated with transportation, insurance and customs clearance both in the country of export and the country of import of the goods. In addition to the above, the Supplier acknowledges that it shall in such case, be considered the exporter and importer of records of the Products. It shall therefore maintain any and all registrations and do any and all acts necessary to be considered as such in the jurisdictions of export and import.
3.12 If the Supplier requires Navico Group to return any packaging material to the Supplier that fact must be clearly stated on any Purchase Order acceptance or confirmation delivered to Navico Group, and any such packaging material will only be returned to the Supplier at Supplier’s cost.
4. PRICE AND PAYMENT
4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, and government-imposed surcharges. Supplier will, at Navico Group’s request, provide a breakdown of such taxes and other charges in its invoices. Supplier shall use commercially reasonable efforts to assist Navico Group in all legal efforts to minimize the taxes resulting from the performance of the Purchase Order. Payment will be in the currency specified on the Purchase Order, or if none is stated, then the currency stated in the invoice.
4.2 Navico Group will pay Supplier the price set forth in the Purchase Order within the payment terms stated on such Purchase Order. Should Navico Group fail to include applicable payment terms on its Purchase Order, the applicable payment terms should be as follows: 120 (one hundred twenty) days from the date of invoice, or the maximum payment terms permissible under the law of the Navico Group entity identified on Purchase Order.
4.3 Supplier shall issue invoices in accordance with the requirements set forth in Navico Group’s supplier manual and/or shipping guidelines (as applicable), and such invoices must include the Purchase Order Number, the corresponding Purchase Order item number for the Products ordered, the manufacturer and sku, the date and terms of shipment, itemized quantities, descriptions and corresponding prices of the Products shipped, and any discount terms. Where Services are performed, the invoice shall also include a reasonably detailed description of the Services provided. Payment of invoices does not constitute acceptance of the applicable Work and payment thereof is without prejudice to any and all claims Navico Group may have against the Supplier under the Purchase Order.
4.4 Navico Group may, at any time, setoff any amounts Navico Group or its affiliated companies owes to Supplier or any of its affiliated companies against any amounts Supplier owes Navico Group or its affiliated companies.
4.5 Payments for Works shall be made by the Navico Group to the Supplier entity issuing the order to the bank account indicated by the supplier or its sales representative. Supplier is responsible for establishing and maintaining methods and procedures used to detect and prevent fraud, theft, and unauthorized attempts to divert payments. Navico Group shall be entitled to fully rely on information provided by the Supplier, its sales representative or any other individual which reasonably claims to represent Supplier. Supplier shall always verify that payment has been received on the correct bank account and ensure that it promptly notifies Navico Group when it changes its bank coordinates. Navico Group may, upon request from the Supplier, request that it completes a bank account verification process. Supplier shall remain fully liable for its payment should Navico Group process payment(s) to a third party due to a mistake of Supplier or its representatives or should Supplier be victim of a fraud, theft, or unauthorized diversion of payment. Supplier acknowledges and understands that any devaluation or other change in the currency of the country of Supplier’s location is at the risk of the Supplier.
5. OWNERSHIP
5.1 Unless otherwise stated in a Purchase Order or Statement of Work, Navico Group is the sole and exclusive owner of all Deliverables. Supplier irrevocably assigns and transfers to Navico Group all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.
5.2 Materials, equipment, tools, dies, molds, copyright, design rights, or any other forms of intellectual property rights in all drawings, specifications and data supplied by Navico Group to Supplier or not so supplied but used by Supplier specifically in the manufacture of the Work shall at all times be and remain the exclusive property of Navico Group but shall be held by the Supplier in safe custody at its own risk and maintained and kept in good condition by the Supplier until returned to Navico Group and shall not be disposed of other than in accordance with Navico Group’s written instructions, nor shall such items be used otherwise than as authorized by Navico Group in writing.
5.3 Notwithstanding Section 5.1, Supplier grants to Navico Group a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sub-licensable license to any Intellectual Property Rights in the Deliverables which arose outside the scope of the Purchase Order to the extent necessary for Navico Group to exercise its rights in the Work as reasonably contemplated by the Purchase Order.
5.4 Supplier grants to Navico Group a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sub-licensable license to any Intellectual Property Rights in the Work which are necessary for Navico Group to use, import, copy, execute, reproduce, display, perform, and distribute copies of and modify (including creating improvements and derivative works based on) the Work.
6. INSPECTION AND ACCEPTANCE
6.1 At any time prior to delivery of the Work, Navico Group shall have the right to inspect and test it. Supplier shall provide Navico Group applicable information identifying chemicals and materials present in Products, including a Chemical Abstract Service Identification Number (CAS#), and confirm Product compliance with applicable material composition and other regulatory policies promptly upon Navico Group’s request. As a result of such inspection, testing, or information provided by Supplier (or otherwise), Navico Group may reject any or all of the Work which does not conform to the applicable requirements of Navico Group at any time before delivery and within 15 business days after Supplier’s delivery of the Work. At Navico Group’s option, Navico Group may (i) return non-conforming Work to Supplier for a refund or credits; (ii) require Supplier to immediately replace the non-conforming Work; or (iii) immediately repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), Navico Group may accept the nonconforming Work conditioned on Supplier providing a refund or credit in an amount Navico Group reasonably determines to represent the diminished value of the non-conforming Work.
6.2 Navico Group’s payment to Supplier for Work prior to Navico Group’s timely rejection of such Work as non-conforming will not be deemed as acceptance by Navico Group. Notwithstanding any inspection or testing, Supplier shall remain fully responsible for the Work and any such inspection or testing shall not diminish or otherwise affect Supplier’s obligations under the Purchase Order. If any of the Work fails to comply with the provisions set out in this Section, Navico Group shall be entitled to avail itself of any one or more remedies under these Standard Purchase Order Terms and Conditions.
7. CHANGE IN SPECIFICATIONS
7.1 Navico Group may, at any time, change (i) the quantity of the Work; (ii) the scope of the Work; (iii) the Delivery Date; (iv) applicable drawings, designs, and specifications, (v) the method of shipment or packing; (vi) the place of delivery of the Work; or (vii) the location for Services to be performed.
7.2 If a change by Navico Group under Section 7.1 causes an increase or decrease in the cost of or the time required for Supplier’s performance, then the price, Delivery Date or both will be equitably adjusted, and the parties will amend the Purchase Order accordingly in writing. Supplier will request an equitable adjustment no later than 20 days from Supplier’s receipt of Navico Group’s notification of a change; provided, however, that Navico Group may extend the request period upon Supplier’s request.
7.3 Supplier will proceed with the Work, both changed and unchanged, pending negotiation of an equitable adjustment and amendment of the Purchase Order.
8. REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that (i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (ii) it has the right and unrestricted ability to assign the Work to Navico Group including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors; (iii) the Work, and Navico Group’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (iv) Supplier will not disclose to Navico Group, bring onto Navico Group’s premises, or induce Navico Group to use any confidential or proprietary information that belongs to anyone other than Navico Group or Supplier which is not covered by a non- disclosure agreement between Navico Group and Supplier; (v) Software supplied by Supplier does not contain any Harmful Code; (vi) Supplier’s Work conforms to Navico Group’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use; (vii) Supplier’s Work will be new, of merchantable quality, and free from all defects, whether patent or latent, and that the workmanship is of the highest standards; (viii) Supplier will comply with all applicable laws, regulations, ordinances, and other legal requirements in the manufacture and delivery of the Products; and (ix) Work will be compliant with all applicable regulatory requirements, including without limitation, where Work may be used or sold (all of the foregoing collectively, the “Supplier’s Warranty”).
8.2 Supplier’s Warranty shall remain in effect for two (2) years after the Delivery Date. Neither approval by Navico Group of Supplier’s design nor acceptance of the Work shall release or discharge Supplier from liability for damages resulting from a breach of Supplier’s Warranty.
8.3 If any defect, failure, or other non-conformity appears, Navico Group shall have the right to: (i) retain such defective items and an equitable adjustment will be made in the Purchase Order price for such defective items; (ii) require Supplier to repair or replace such defective Work at the Supplier’s sole expense including all shipping, transportation, and installation costs or (iii) correct or replace such defective Work with similar items and recover the total costs thereof from Supplier. If such repair, replacement, or re-performance is insufficient in Navico Group’s sole discretion, the full original cost of such Work shall be refunded to Navico Group. Supplier’s Warranty shall survive acceptance and payment and shall run to Navico Group, its customers, and their successors in title and shall not be deemed to be exclusive but shall be in addition to Navico Group’s other rights under the terms of the Purchase Order or equity.
8.4 Navico Group warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.
9. ASSIGNMENT AND SUBCONTRACTING
9.1 Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without Navico Group’s prior written consent, which Navico Group will not unreasonably withhold. Navico Group may, at its option, void any attempted assignment or delegation undertaken without Navico Group’s prior written consent.
9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order without Navico Group’s prior written consent. If Navico Group consents to the use of a Subcontractor, Supplier will: (i) guarantee and remain liable for the performance of all subcontracted obligations; (ii) indemnify Navico Group for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by Navico Group or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, Navico Group will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify, and hold Navico Group harmless for all damages and costs of any kind, without limitation, incurred by Navico Group and caused by Supplier’s failure to pay a Subcontractor.
9.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom, or otherwise.
10. TERM AND TERMINATION
10.1 The Purchase Order shall continue for the time period stated on the applicable SOW or Purchase Order, and if no term is stated, the Purchase Order shall continue until the Products are delivered and accepted, or until the Services are performed.
10.2 Navico Group may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier shall cease Work, will inform Navico Group of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to Navico Group whatever Work then exists. Navico Group will pay Supplier reasonable compensation for all Work performed and accepted as of the date of the notice of termination, provided that Navico Group will not be obligated to pay any more than the payment that would have become due had Supplier completed and Navico Group had accepted the Work. Navico Group will not be obliged to pay the Supplier for loss of anticipated profits or any indirect or consequential damages and will have no further payment obligation in connection with any termination.
10.3 Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
10.4 Navico Group may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
10.5 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. Navico Group shall have no further payment obligation to Supplier under any terminated SOW if Navico Group terminates the SOW under this Section 10.5.
10.6 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
11. CONFIDENTIALITY
11.1 If Navico Group and Supplier have entered into a confidentiality or non-disclosure agreement (“NDA”) which covers disclosure of
confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase
Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.
11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA.
11.3 If Navico Group and Supplier have not entered into any NDA as described in Section 11.1, then the provisions of this Section 11.3 shall control disclosure of confidential information under the Purchase Order. Supplier acknowledges and agrees that Navico Group’s business and future success depends on the preservation of the trade secrets and other confidential information of Navico Group and its affiliates, licensors, suppliers, customers, and prospective customers (“Confidential Information”). The Confidential Information includes, without limitation, the Deliverables and all specifications, drawings, prototypes, technical information, patent applications and information, procedural and business and financial information, product and marketing plans, personnel information, know-how and any ideas, concepts, product, methods, inventions, procedures or information that are proprietary to Navico Group, its affiliates, its licensors, or its
actual or prospective suppliers of customers or that Navico Group is required to keep confidential, whether developed by or provided to
Supplier. Supplier agrees to protect and to preserve as confidential during and after the term of the Purchase Order all the Confidential
Information at any time known to Supplier. Supplier agrees to take appropriate action to protect and preserve the confidentiality of the
Confidential Information, and at a minimum to utilize the same level of care to safeguard such as it uses to protect its own confidential or
proprietary information, but in no event less than reasonable care.
11.4 Supplier shall not disclose any of the Confidential Information without the prior written consent of Navico Group, and Supplier shall neither use nor allow others to use any of the Confidential Information for any purpose other than for the sole benefit of Navico Group as
authorized by the Purchase Order, unless specifically approved in writing in advance by Navico Group. Supplier’s obligation under this
Section 11.3 shall survive any completion or termination of the Purchase Order. Because a violation by Supplier of the provisions of this
Section 11.3 could cause irreparable injury to Navico Group and there is no remedy at law for such violation, Navico Group shall be entitled, in
addition to all other remedies available at law or in equity, to equitable relief, including injunction and specific performance without posting
a bond, as a remedy for any such violations.
11.5 Supplier shall obtain Navico Group’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to Navico Group.
12. INDEMNIFICATION
12.1 Supplier (“Indemnifying Party”) shall defend, indemnify and hold harmless Navico Group and its parent company, subsidiaries, affiliates, successors or assigns and each of their respective directors, officers, shareholders and employees and customers (collectively, “Indemnified Party”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Claims”) arising out of or related to the Works or Supplier’s negligence,
willful misconduct or breach of these terms and conditions or Purchase Order.
12.2 The Indemnified Party will provide the Indemnifying Party with written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist
it with respect to any Claim. The Indemnifying Party will have no authority to compromise or settle any Claim on the Indemnified Party’s behalf without the Indemnified Party’s consent.
12.3 If a third party enjoins or interferes with Navico Group’s use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit Navico Group to continue to use the Work; (ii) replace or
modify the Work as necessary to permit Navico Group to continue to use of the Work; or if(i) and (ii) are not commercially reasonable, then
(iii) promptly refund to Navico Group the amount paid for any Work for which a third party enjoins or interferes with Navico Group’s use of
the Work.
12.4 Nothing in this Section shall limit any other remedy of the parties.
13. LIMITATION OF LIABILITY
13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, NAVICO GROUP WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT PAID OR PAYABLE BY NAVICO GROUP UNDER THE APPLICABLE PORTION OF THE PURCHASE ORDER PERTAINING TO THE WORK(S) GIVING RISE TO SUCH LIABILITY.
13.2 IN NO EVENT WILL NAVICO GROUP BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT NAVICO GROUP WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
14. INSURANCE
14.1 Supplier shall procure and maintain appropriate insurance coverage meeting or exceeding the following requirements, as well as all jurisdictional and legal mandates:
(A) Commercial General Liability: Supplier shall provide and maintain Commercial General Liability Insurance with minimum limits of US $2,000,000 per occurrence and US $4,000,000 annual aggregate. Such insurance shall be on an ISO CG 00 01 latest edition or equivalent policy form with broad form coverage for bodily injury, death, property damage, and personal and advertising injury relating to the performance of the contract, including coverage for independent contractor’s protection (required if any work subcontracted), blanket contractual liability, premises operations, products and completed operations, fire legal liability, and liability assumed under an insured contract (for a minimum of two (2) years following final completion of the project).
(B) Employer’s Liability: Supplier shall provide and maintain Employer’s Liability Insurance with minimum limits of liability of $1,000,000 bodily injury by accident each accident, $1,000,000 bodily injury by disease policy limit; $1,000.000 bodily injury each employee.
(C) Workers’ Compensation: Supplier shall provide and maintain Workers’ Compensation Insurance sufficient to meet its statutory obligation to provide coverage for Supplier’s employees and personnel.
(D) Commercial Automobile Liability: Supplier shall provide and maintain Commercial Automobile Liability Insurance covering Any Auto with limit no less than $2,000,000 per accident for bodily injury and property damage.
(E) Umbrella Liability: Supplier shall provide and maintain Umbrella / Excess Insurance for the above- referenced policies with a Combined Single Limit of $5,000,000 per occurrence and annual aggregate per location. The coverage under such umbrella or excess liability policy must be at least as broad as the underlying insurance. Liability insurance may be satisfied with any combination of primary and excess or umbrella liability policies totaling the amount of the required insurance.
(F) Professional Liability (Errors and Omissions): Supplier shall provide and maintain Professional Liability Insurance appropriate to the Supplier’s profession, with limit no less than $2,000,000 per occurrence or claim, $4,000,000 aggregate. Such professional liability insurance coverage shall be maintained throughout the project and for a period of not less than two years following the project final completion.
(G) Cyber Liability: Supplier shall provide and maintain Cyber Liability Insurance with limits of not less than $1,000,000 for each occurrence and an annual aggregate of $2,000,000 covering claims involving privacy violations, information theft, damage to or destruction of electronic information, intentional and/or unintentional release of private information, alteration of electronic information, extortion and network security.
14.2 PRIMARY COVERAGE: Supplier’s insurance coverage shall be primary insurance as respects Navico Group. Any insurance or self-insurance maintained by Navico Group shall be excess of Supplier’s insurance and shall not contribute with it.
14.3 WAIVER OF SUBROGATION: Supplier hereby grants to Navico Group a waiver of all rights to subrogation which any insurer of Supplier may acquire against Navico Group by virtue of the payment of any loss under such insurance. Supplier agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether Navico Group has received a waiver of subrogation endorsement from the insurer.
14.4 DEDUCTIBLES AND SELF-INSURED RETENTIONS: As to the insurance required of Supplier, Supplier is responsible for payment of all deductibles and self-insured retentions. Any deductible or self-insured retention must be declared to and approved by Navico Group.
14.5 NOTICE OF CANCELLATION OR MATERIAL CHANGE: Should any of the above-described policies be cancelled, not renewed, or materially changed before the expiration date thereof, Supplier will provide Navico Group thirty (30) days advance written notice of such cancellation, non-renewal, or change.
14.6 VERIFICATION OF COVERAGE: Supplier shall furnish to Navico Group Certificate(s) of Insurance evidencing the above coverage upon request within ten (10) days.
15. COMPLIANCE WITH LAWS
15.1 Anti-Corruption and Anti-Bribery: Supplier shall comply with all applicable anti-corruption and anti-bribery laws, rules, regulations, governmental requirements, and industry standards existing in the market with respect to the Products and Supplier’s activities, including for purposes of this Agreement the United States Foreign Corrupt Practices Act (“FCPA”) and the UK Bribery Act. Supplier agrees that it will not, and will ensure that its employees, directors, officers, agents or other persons acting on its behalf do not, offer, promise, or make any payments, gifts or give anything of value, either directly or indirectly, to any person or an official of any government or government agency for the purpose of influencing an act or decision of the official in his or her official capacity or inducing the official to use his or her influence to assist Supplier in obtaining or maintaining business or in obtaining or paying for favorable treatment or for influencing official actions or decisions affecting orders submitted to Navico Group or any agreements with Suppliers or any other special concessions. Supplier will indemnify and hold harmless Navico Group from any and all fines, damages, losses, costs, and expenses (including reasonable attorneys’ fees) incurred as a result of the breach of this Section by Supplier, its agents or customers.
15.2 Equal Employment Opportunity and Affirmative Action for United States Government Contractors and Sub-contractors: Supplier agrees that in providing Products, Services (and/or Deliverables) under this Agreement, it will not discriminate against any employee or applicant for employment based on any protected category recognized under applicable federal, state or local law. Navico Group is a contractor to the federal government and is subject to (1) Executive Order 11246, as amended, (2) the Rehabilitation Act of 1973, as amended; (3) the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and the regulations, order and rules issued under each of these. Accordingly, the following regulations and clauses listed below are incorporated into this Agreement to the extent applicable: the Equal Employment Opportunity Clause (41 C.F.R. Section 60-1.4), and 48 C.F.R. 52.222-26; Employee Rights Under the National Labor Relations Act Clause (29 CFR Part 741), and 48 C.F.R. 52.222-40; the Equal Opportunity Clause for Disabled Veterans, Recently Separated Veterans, Other Protected Veterans and Armed Forces Service Medal Veterans (41 C.F.R. Section 60-300.5), and 48 C.F.R. 52.222-35, 52.222-37, 52.222-38; and the Equal Opportunity Clause for Workers with Disabilities (41 C.F.R. Section 60-741.5), and 48 C.F.R. 52.222-36. Supplier shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a), as applicable. These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.
16. TRADE COMPLIANCE
16.1 Supplier will comply with Navico Group’s reasonable requests for information or assistance necessary to secure exportation or importation of the Products and to substantiate Navico Group’s claim to any applicable drawback or refund. If any tax or duty is included or added to the price of the products paid by Navico Group, then all rights to drawback (as defined in 19 C.F.R. § 191.2(i)) or refunds of taxes or duties paid by Supplier with respect to the products (or material or components thereof) shall belong to and shall remain with Navico Group, and Supplier hereby assigns such rights to Navico Group. Supplier shall execute and deliver any documents, provide information, and take other action that may be required to substantiate Navico Group’s claim to such drawback or refund. Supplier shall take any other reasonably requested action that may be required to secure the exportation or importation of the products.
16.2 Supplier acknowledges and understands that select parts ordered may be components, finished goods, and/or technology or technical data subject to control under the export laws and regulations of the United States. Supplier agrees that it will notify Navico Group in writing if any product Navico Group is purchasing has any such export restrictions.
16.3 Supplier agrees to promptly comply with Navico Group’s periodic requests for information about Supplier’s supply chain, including but not limited to its supply chain verification procedures. Supplier will, from time to time upon first request and, as relevant, by 1 January of each year execute and deliver to Navico Group any reasonably requested documents (including, but not limited to Country of Origin certificates bearing the information required by Navico Group and any and all other accurate and timely information required for Importer Security Filing (“ISF”) for all products that Supplier sells to Navico Group. If Supplier provides inaccurate or untimely information, Supplier agrees to reimburse Navico Group for any resulting fines or penalties. Navico Group reserves the right to request any such documentation,
regardless of the INCOTERMS applicable to the relevant transactions.
16.4 Supplier shall upon first request provide any and all documentation necessary to evidence its, and Navico Group, compliance with trade compliance requirements in any and all countries where Supplier and Navico Group do business. Such shall include, but not be limited to:
· Mill Certificates or equivalent document bearing the origin and name of the manufacturer and companies processing the said relevant metals
· Related certification related to the origin of metals included in the Supplier’s Products as may be required in the regions where Navico Group imports and sells its own products (either being or incorporating the Products sold by the Supplier)
· Modern Slavery statements
· USMCA Certificates
· Supply Chain Security Programs
· Supplier code of conducts
· Any other document that may be requested by Navico Group
17. DATA PROTECTION
17.1 For the purposes of fulfilling its obligations under a Purchase Order, Navico Group shall collect and/or receive from Supplier personal data about (1) Supplier’s officers, directors, and employees, and from (2) Supplier’s contractors and their officers, directors, and employees. Supplier hereby authorizes Navico Group to store, use and process all personal data collected in fulfilling the terms of the Order anywhere Navico Group does business, i.e., in and out of the European Economic Area (“EEA”), including in countries that do not have the same level of protection of personal data as in Supplier’s country. Such personal data may include names, phone numbers, and e-mail/postal addresses of Supplier’s officers, directors, employees and contractors (“Personal Data”). Such Personal Data shall be processed by Navico Group as an Independent Controller based on the following legal basis: Execution of a Contract. As a global company, Navico Group may transfer Personal Data to other of Brunswick Corporation and to U.S. third-party processors and assignees acting on Brunswick Corporation’s behalf and under Brunswick Corporation’s instructions, for uses consistent with these terms. Navico Group shall take appropriate measures to cover the transfer of Personal Data in and out of the EEA in conformity with applicable Data Protection Laws. Navico Group’s Privacy Policy is available at https://www.brunswick.com/privacy-policy. Supplier acknowledges that it has duly informed and obtained proper consent from (1) its officers, directors, and employees, and from (2) its contractors, and their officers, directors, employees, with respect to the disclosure to – and further processing by – Navico Group of their Personal Data for the above-mentioned purposes, including their transfer in and out of the EEA, before providing any Personal Data to Navico Group.
18. GOVERNING LAW; JURISIDICTION; FEES
18.1 These terms and conditions and any claim, dispute, or controversy arising from or relating to a Purchase Order placed by Navico Group shall be governed, without regard to any conflict of laws rules, by the laws of:
· The State of Illinois, United States of Americas, in case the Purchase Order is placed by a Navico Group entity incorporated in South or North Americas.
· The Netherlands, in case the Purchase Order is placed by a Navico Group entity incorporated in Europe, Middle East or Africa
· Singapore, in case the Purchase Order is placed by a Navico Group entity incorporated in Asia or Oceania.
18.2 The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Supplier agrees that any and all disputes, claims or controversies arising out of or in connection with a Purchase Order, these terms, or the breach, termination, enforcement, interpretation, or validity thereof, shall be submitted to the exclusive jurisdiction of the courts of:
· Chicago, Illinois, United States of Americas, in case the Purchase Order is submitted by a Navico Group entity incorporated in South or North Americas.
· Amsterdam, the Netherlands, in case the Purchase Order is submitted by a Navico Group entity incorporated in Europe, Middle East or Africa
· Singapore, in case the Purchase Order is submitted by a Navico Group entity incorporated in Asia or Oceania.
18.3 The jurisdiction of any other courts is hereby excluded, and the parties hereby waive any objection to such jurisdiction, including but not limited to forum non conveniens. If any action is brought to enforce, or to construe or determine the validity of, any term or provision of the Purchase Order, the prevailing party shall be entitled to an award of litigation expenses, interest and reasonable attorney fees, in addition to any other remedy obtained.
18.4 Notwithstanding what precedes, the Parties agree that these clauses shall not supersede regulations imposing specific forum and jurisdictions, notably when Supplier and the Navico Group entity are located within the same jurisdiction, which does not allow for forum election. In such case, provided that the parties are allowed to select their forum within the said relevant jurisdictions, the parties agree that the competent courts shall be that of the location and local jurisdiction of the Navico Group entity.
19. FORCE MAJEURE
19.1 Neither Navico Group nor Supplier shall be liable for any failure to perform in accordance with the terms of the Purchase Order when and to the extent such failure is caused by: acts of war, fires, freight embargoes, floods, explosions, government orders, or epidemics. In the event the Supplier is unable to perform due to any of the foregoing events, Navico Group shall be entitled, in addition to its right to terminate pursuant to Section 10 (Term and Termination), to (i) suspend its payment obligations until such time as Supplier is able to resume performance; (ii) obtain the items covered by the Purchase Order from such other sources as Navico Group may determine for the duration of Supplier’s inability to perform and (iii) reduce accordingly, and without any obligation to Supplier, the quantity of the items specified by the Purchase Order.
20. GENERAL
20.1 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated on the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives
confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in
the mail.
20.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will
be resolved as follows:
· A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.
· A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
· A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the
20.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality,
validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of
the Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
20.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.
20.5 *Each right or remedy of Navico Group under the Purchase Order is without prejudice to any other right or remedy of Navico Group whether under the Purchase Order or not.
20.6 The parties intend that any term of this Purchase Order will be enforceable by any Navico Group entity or affiliate who orders Works from the Supplier.
20.7 Failure or delay by Navico Group in enforcing or partially enforcing any provision of the Purchase Order will not be construed as a waiver of any of its rights under the Purchase Order.
Terms and Conditions of purchase for Navico Inc - Valid until 1 July 2024