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Terms & Conditions of Purchase

Terms & Conditions of Purchase

H.K. WENTWORTH LIMITED (Incorporating Electrolube, AF and Eurochemi)

Terms and Conditions of Purchase

1. Conflicting Terms and Conditions

These terms and conditions (“T&Cs”) shall apply to the goods, merchandise and materials (collectively, “Goods”) and/or services (“Services”) described on the face of this Purchase Order (“PO”), and upon acceptance of the PO by the seller indicated on the face of the PO (“Seller”), the PO together with any exhibits or attachments shall form an agreement between the buyer indicated on the face of the PO (“Buyer”) and Seller (collectively, the “Agreement”). To the extent of a conflict between the terms and conditions on the face of the PO and these T&Cs, the provisions on the face of the PO shall govern.  Shipment of any part of the Goods or provision of Services shall be deemed to constitute acceptance. ANY ACKNOWLEDGMENT FORM OR OTHER SELLER FORM CONTAINING TERMS AND CONDITIONS OF SALE SUBMITTED BY SELLER WHICH ARE DIFFERENT FROM THOSE SET FORTH HEREIN ARE HEREBY OBJECTED TO BY BUYER AND SHALL NOT MODIFY OR ALTER THE PROVISIONS CONTAINED HEREIN, WHICH SHALL GOVERN.

2. Delivery, Title and Risk of Loss.

Unless otherwise stated on the face of this PO, or to the extent otherwise required by applicable law, all deliveries of Products shall be DDP, Buyer’s site designated in the PO (Incoterms 2010).  Title and risk of loss pass to Buyer upon delivery of the Products to Buyer’s site designated in the PO. Time is of the essence for all deliveries of Products. Buyer reserves the right to refuse delivery of any Goods made more than one week in advance of any applicable delivery schedule and to return such to Seller at Seller's expense.  Seller will include a quality certificate, an itemized packing list, and a bill of lading with all shipments. Seller must include the PO number on all documentation and product description, lot number, and Buyer item number on each container shipped.

3. Price and Payment.

Seller expressly agrees that the prices stated in this PO are firm and shall remain firm until all deliveries and/or Services (as applicable) have been completed.  If no price is included in the PO, the price shall be the price set out in Seller's published price list in force as of the date of the PO.  Payment shall be made in the currency specified on the PO and is due 60 days from receipt of invoice (or within the shorter term provided by mandatory local law requirements).  Credits due for rejections, discrepancies or paid invoices may, at Buyer's option, be deducted from subsequent payments.

4. Warranty.

Seller warrants that: (i) Buyer shall have good and unencumbered title to all Goods, and is expressly permitted by Seller to repackage/relabel the Goods, suppressing any trademark they bear, and replacing it with the Buyer’s, before reselling, trading or otherwise putting the Goods on the market; (ii) the Goods and Services shall conform to the specifications, descriptions or samples furnished, specified or agreed upon by Buyer, and (iii) the Goods shall be merchantable, of good quality, free from defects and fit for their intended purpose. Seller agrees to indemnify and hold harmless Buyer from and against any and all claims, losses, damages and expenses (including attorneys' fees), resulting from or arising out of a breach of Seller's warranties.

5. Inspection and Rejections.  

Buyer shall have the right to inspect and examine all Goods to the extent practicable at all times and places, including during the Seller's period of manufacture. Final inspection shall be at Buyer's premises within a reasonable time after final delivery. In case any Goods delivered hereunder are defective or otherwise not in conformity with the requirements of this PO, Buyer shall have the right, notwithstanding payment or any prior inspection or examination, to reject all or any part of such Goods, and at Buyer's option, to return such Goods to Seller for credit or rebate of the price paid, or require replacement of the Goods, all at Seller's expense.

6. Termination for Cause.

Buyer may cancel this PO in whole or in part as to any or all Goods not yet shipped or Services not yet provided, at any time upon notice to Seller in the event Seller (1) fails to comply with any term or condition of this Agreement, (2) appoints a receiver, becomes insolvent, or proceedings are instituted by or against Seller under any provision of any bankruptcy law, (3) ceases operations, or merges with or is acquired by a third party, or (4) assigns any of its rights or obligations under this PO to a third party without Buyer's prior written consent. Upon such cancellation, Buyer shall have no liability to Seller beyond payment of any balance owing for Goods and Services delivered to and accepted by Buyer prior to Seller's receipt of the notice of termination, and for work in process requested for delivery to Buyer.

7. Additional Remedies.

Buyer shall have the right to specifically enforce the terms of this PO. Buyer’s rights and remedies under this PO are cumulative and are in addition to any other rights and remedies available at law or in equity.

8. Patents and Other Intellectual Property Claims.

Seller will defend any action brought against Buyer based on a claim that the Goods purchased hereunder, or any of their parts, infringe any patent, copyright, trademark, trade secret or any other proprietary right of any third party, at its expense, and will pay all costs and damages, including attorneys' fees. In the event a final injunction is obtained against Buyer's use of the Goods or any part thereof by reason of such infringement, or in Seller's reasonable opinion the Goods or any part thereof are likely to become the subject of a claim or infringement of any intellectual property right, Seller will at its expense and as required by Buyer, either procure for Buyer the right to continue using the Goods or replace or modify Goods so they are noninfringing but functionally equivalent to the Goods originally provided hereunder.

9. Limitation of Liability. 

IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS) OR PUNITIVE DAMAGES OF ANY KIND, NO MATTER WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, RESULTING FROM BREACH OF THIS AGREEMENT OR ANY MATTER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT.

10. Confidential Information.  

Seller shall neither disclose to any person other than its employees, officers or directors who have a legitimate need to know the information, nor use for purposes other than performance of this PO, any information received from Buyer in connection with this PO, including, but not limited to, drawings, blueprints, manuals, descriptions or specifications (“Confidential Information”).  Buyer shall at all times have title to Confidential Information furnished by Buyer to Seller and intended for use in connection with this PO. Upon termination of this PO, or when requested by Buyer, Seller shall promptly return to Buyer all Confidential Information (including all copies) delivered to Seller. It is understood that any information received by Buyer from Seller, including all drawings and documents, will not be of a confidential nature or restrict the use of such information by Buyer.

11. Responsibility for Packing, Marking and Delivery.  

Seller shall pack and mark the Goods covered by this PO to meet carrier requirements and assure arrival at the site designated in the PO free of damage and deterioration.  All containers, packing and crating material shall become property of Buyer.

12.  Process Change Notification.

In the event that Seller must make a process change that may affect the finished Goods or Services, Seller must provide Buyer with written notice and obtain written approval from Buyer at least six (6) months prior to such change. Process changes may include any change in specifications, sampling plans, testing methodology, manufacturing site, process equipment, raw material constituents and sources, formulations, organizational ownership, and materials. In the event that Seller must discontinue or terminate the manufacture of any Goods or Services, Seller must provide Buyer with at least twelve (12) months’ prior written notice. Seller shall support Buyer in securing sufficient stock at no additional cost during Buyer’s qualification of an alternative source. In the event Buyer is unable to procure the Goods or Services from another source or use alternative goods, merchandise, materials, or services available from Seller, Seller shall grant Buyer a nonexclusive license to Seller’s formulas, bill of materials, specifications, designs, and other data and information so as to permit Buyer to produce, or have produced, the discontinued or terminated Goods or Services.

13. Assignment.  

This PO may not be assigned by either party without prior written consent of the other, except that Buyer may, without Seller’s consent, assign this PO and its right to receive the Goods and Services hereunder to an affiliate.

14. Compliance with Laws.  

Each party shall, in performance of its obligations hereunder, and in the production, sale and delivery of the Goods and Services, comply with all applicable laws and governmental rules, regulations and orders.

15. Waiver.

A waiver by either party of any breach of this Agreement by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. The failure of either party to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of the party's right to exercise the same or different rights in subsequent instances.

16. Succession.

This Agreement shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and permitted assigns.

17. Notices.  

Except as otherwise provided, all notices provided for by these T&Cs shall be given in writing either by actual delivery or by e-mail or registered or certified mail, return receipt requested, and shall be deemed to be received on the date personally delivered or sent by e-mail, or three (3) days after deposited in the mail postage prepaid.

18. Seller Insurance.

Seller will maintain, at its cost and expense, policies of insurance of the types and in the amounts reasonably required for its business.

19. Anti-Corruption Compliance. 

Seller certifies that it (i) has been and will continue to be in full compliance with Buyer’s Foreign Corrupt Practices Act/Anti-Corruption Policy (the “Policy”) (which can be found on Buyer’s website:www.elementsolutionsinc.com/) and all applicable anti-corruption laws, including, without limitation, the U.S. Foreign Corrupt Practices Act (collectively, “Applicable Laws”); and (ii) has not and will not pay, offer, or promise to pay, or authorize the payment of, directly or indirectly, any monies or anything of value to (a) any governmental official, government employee, political party, or candidate for political office for the purpose of influencing any act or decision to obtain or retain business or otherwise gain an improper advantage, or (b) any private individual that could reasonably be expected to cause the recipient to violate his or her duty of loyalty or trust.  Buyer may audit Seller’s books and records and conduct other internal review to verify compliance with the Policy and Applicable Laws.  Seller agrees that it shall immediately advise Buyer in writing if Seller learns of, has reason to know of, or suspects any violation of the Policy or any Applicable Laws involving Buyer, any of Buyer’s affiliated companies, or the actions of Seller or its representatives in connection with this Agreement.

20. Compliance with Sanctions.

Neither the Seller nor any of its Subsidiaries, nor any executive officer or director thereof, nor, to the knowledge of the Seller, any Affiliate of the Seller or any executive officer or director thereof, (i) is not a Person described or designated in the Specially Designated Nationals and Blocked Persons list or a subject of sanctions or restrictions administered or enforced by the United States Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the United States Department of Commerce’s Bureau of Industry and Security (“BIS”), the European Union, Her Majesty’s Treasury, the United Nations Security Council, or any other relevant sanctions authority (collectively, “Sanctions”),  (ii) the Seller hereby represents, certifies and warrants that it is now and will remain in the future compliant with all import and/or reexport control statutes, regulations, decrees, guidelines and policies of the United States Government and the government of any country in which the Seller conducts business (or are otherwise applicable); and (iii) Seller has not engaged in any conduct that would cause adverse consequences to Buyer or its affiliates under any Sanctions program administered through relevant authorities, by virtue of their involvement in the transactions contemplated by this Purchase Order.

21. Conflict Minerals and Supply Chain Compliance.

The Dodd-Frank Wall Street Reform and Consumer Protection Act – Section 1502 imposes United States Securities and Exchange Commission (“SEC”) reporting requirements upon publicly-traded companies whose products contain metals derived from minerals defined as “Conflict Minerals” originating in the Democratic Republic of the Congo (“DRC”) and surrounding countries. These Conflict Minerals include tantalum, tin, tungsten, and gold (“3TGs”). The legislation requires publicly traded companies to report annually to the SEC on whether they use 3TGs that originated from the DRC or adjoining countries, and what actions they are taking to identify and eliminate from their supply chains the use of Conflict Minerals that are not and would not be sourced responsibly. Non-SEC registered companies who supply directly or indirectly to SEC registered companies will also be asked to comply with the regulations. Buyer’s Conflict Minerals Policy can be found on Buyer’s website: https://www.elementsolutionsinc.com/about/quality-corporate-social-responsibility which is also referenced in Buyer’s Supplier Code of Conduct, which can also be found on Buyer’s website: https://ir.elementsolutionsinc.com/governance-docs. Seller acknowledges the terms of and agrees to comply with Buyer’s Conflict Minerals Policy and Supplier Code of Conduct, as the same may be updated from time to time, and agrees to cooperate with Buyer to obtain information from its supply chain to determine whether products supplied to Buyer contain 3TGs and the country of origin of those minerals.

22. Miscellaneous. 

If any provision herein is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be amended to as closely as possible achieve the intended effect of this Agreement in a valid, lawful and enforceable manner, or if not possible, then deleted and ineffective to the extent thereof, all without affecting any other provision of this Agreement.  The parties disclaim applicability of the U.N. Convention on the International Sale of Goods to the sale of Goods hereunder.  This Agreement shall be governed by the laws of the jurisdiction of Buyer’s principal place of business, and Seller agrees to be subject to jurisdiction in the courts of the jurisdiction of Buyer’s principal place of business. Except as provided in the first paragraph of these T&Cs, this Agreement constitutes the entire written agreement of the parties covering the sale and purchase of the Goods and Services, and there are no understandings, agreements, representations, express or implied, that are not contained herein regarding the subject matter hereof.  No modification of this Agreement shall be binding on Buyer unless approved by Buyer in writing.