1.    Acceptance. The Illinois Tool Works Inc. business (the“Affiliate”) identified on any purchase order, market rate of demand worksheetor release (each, an “Order”), or if no such entity is identified, the buyerhereunder is herein referred to as (“ITW”), and the company selling products(“Products”) or services (“Services”) to ITW is referred to as (“Seller”).These terms and conditions of purchase (“Terms”), any Order and all documentsincorporated by specific reference herein (“ITW Documents” together with theseTerms, the “Agreement”), constitute the complete terms governing the purchaseof Products and Services. ITW HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMSOR CONDITIONS PROPOSED BY SELLER, WHETHER CONTAINED IN ANY FORMS, INVOICES,CORRESPONDENCE OR ON SELLER’S WEBSITE, AND ANY SUCH ADDITIONAL OR DIFFERENTTERMS WILL BE OF NO EFFECT. No site usage agreement or any other click throughagreement on a website will have any binding effect on ITW whether or not ITWclicks on an “ok,” “I accept,” or any similar acknowledgment. Delivery of apurchase order acknowledgment by Seller, commencement of any work by Seller orSeller’s shipment of the Products will manifest Seller’s assent to theAgreement. Notwithstanding the foregoing, unless Seller expressly rejects an Order,Orders shall be deemed accepted seventy-two hours after Seller’s receiptthereof. Additional or different terms may be specified in the body of an ITWDocument or agreed to in writing by the parties. In the event of a conflict,the following order of precedence will apply: (a) terms agreed to in writingand executed by an authorized representative of ITW; (b) ITW Document terms;(c) these Terms.
2.    Affiliates. ITW shall have no liability for purchases by its Affiliates, norwill ITW be regarded as a guarantor under the Agreement for such purchases.Seller waives any right to assert liens, claims or security interests againstITW or any other Affiliate for the obligations of another Affiliate. However,for the purposes of calculating volume discounts or rebates, if any, purchasesmade by Affiliates will count towards ITW’s aggregate purchases.
3.    Invoicing,Pricing and Payment Terms.All prices, whether quoted or set forth in an Order, will be in Euros, unlessotherwise agreed, and are firm and shall not be subject to change or additionalcharges without ITW’s prior written consent. Unless otherwise provided in theOrder, such charges include all packaging and delivery of the Products to thespecified delivery point, labor, supervision, materials, overhead and othercosts associated with the manufacture, sale and delivery of the Products andServices, including all excise, import, export, value added, sales and usetaxes and surcharges. Payment terms for all Products purchased hereunder are 2%15, net 60 after receipt of an undisputed invoice. All invoices for theProducts and Services must be itemized and must reference the Order number,amendment or release number, ITW’s part number, Seller’s part number whereapplicable, quantity of pieces in the shipment, number of cartons or containersin the shipment, bill of lading number, and other information required by ITW.If Seller breaches any provision of the Agreement, or if any person or entityasserts a claim or lien against ITW relating to Seller’s breach, ITW maywithhold from any payments due or to become due to Seller an amount sufficientto protect ITW from all claims, losses, damages and expenses. Seller warrantsthat the prices Seller charges ITW under the Agreement for the Products orServices or similar products or services are the lowest prices charged bySeller to any other customer under similar conditions. If Seller charges anyother customer a lower price for such similar products or services, Seller mustnotify ITW and apply that price retroactively and prospectively to all Productsand Services ordered under the Agreement. If Seller fails to meet the lowerprice ITW, at its option, may terminate the balance of the Order withoutliability. In the event of any dispute under this section, Seller shallcontinue to perform its obligations under the Agreement.
4.    Forecasts,Safety Stock and Product Shortages. Any forecast provided by ITW is non-bindingand not
a commitment by ITW to purchase such quantities of the Products. Seller shallpromptly notify ITW of any potential Product shortages or any pending disputes,litigation or any other circumstance which may jeopardize Seller’s or anysub-tier seller’s ability to perform under the Agreement. In the event of apotential Product shortage, Seller will prioritize ITW and allocate theavailable inventory in a manner which ensures that ITW’s demands are met in accordancewith the specified shipping terms. Time and delivery are of the essence in theAgreement. To reduce lead times and to ensure timely delivery of155 Harlem Avenue //Glenview, Illinois 60025 // itw.com Products, Seller will, upon ITW’s request therefor, manufactureand maintain Products at such safety stock levels as may be set by ITW fromtime to time to serve as a reserve for shipment. Unless and until such reserveProducts are purchased by ITW from Seller, they shall remain the property ofSeller and shall be held by Seller at its sole risk and expense.
5.    Quantity. Unless the Order requires Seller tomanufacture, ship, or provide a specified quantity of Products, the Order is arequirements contract under which Seller is required to supply 100% of ITW’srequirements of the Products at ITW’s Receiving Location(s). ITW’s requirementswill be communicated via a release, a non-binding forecast, a Kanban signal orother mechanism as determined by the local plant. These requirements may besubject to change. ITW may return shipments of excess quantities to Seller atSeller’s expense.
6.    Cancellationor Modification. ITW may cancel any Order,in whole or in part, by providing Seller written or electronic notice ofcancellation: (a) with respect to Products that have not been custom producedto ITW’s proprietary specifications, at any time prior to Seller’s shipment ofsuch Products without further obligation or liability to Seller; (b) withrespect to custom designed Products, at any time prior to Seller’s shipment ofsuch Products, provided that ITW will have the option to purchase completedProducts in the possession of Seller at the Agreement price and work-in-process(excluding any anticipated profit), up to the amount of firm releases; or (c)with respect to Services, at any time prior to completion and ITW will only beliable either (i) for the Services actually performed up to the date oftermination or (ii) if payment of fees is dependent upon delivery ofdeliverables, for the conforming deliverables actually delivered up to the dateof termination. ITW may make changes in specifications, materials, packaging,method of transportation and time and place of delivery at any time bynotifying Seller. Seller must give ITW prompt notice if the changes affect theprice or delivery schedule. If ITW proceeds with the changes, the parties willnegotiate an adjustment to the price or delivery schedule consistent with theAgreement. Seller will make no changes to the Product, including thespecifications, design, materials, manufacturing location, or processes,without ITW’s prior written consent. Seller cannot cancel, terminate or modifyany Order, in whole or in part, except with ITW’s consent in writing. Unlessthe Order expressly states otherwise, the Order is binding on the parties forthe length of the applicable customer program production life (including modelrefreshes as determined by the applicable customer), and both ITW and Selleracknowledge the risk of such program production life being cancelled orextended by such customer.
7.    Quality Requirements. Seller will conform to the quality control standards andinspection system that are established or directed by ITW, or to the extentmore exhaustive, all applicable industry or Seller’s own standards, whicheveris higher. Seller will also properly document and mark Products to evidence itscompliance with applicable law, obtain any necessary certifications necessaryunder applicable law and participate in supplier quality and developmentprograms of ITW or as directed by ITW. Upon ITW’s request, Seller willparticipate in and comply with all Seller Manuals and supplier performanceevaluations. In the event that any of ITW’s specifications or otherrequirements may result in any negative impact to the Product, Seller shallimmediately notify ITW in writing of all ramifications of such direction. Anyreviews, audits, inspections, acceptance quality levels, approved vendor lists,bill of materials, or approvals by ITW will not relieve Seller of itsobligations.
8.    Delivery. Incoterms 2020 will apply to all shipmentsand, unless otherwise indicated on the Order, all Products shall be deliveredFCA ITW’s designated delivery point. Seller shall use the carrier designated byITW and ship and mark the packaging in accordance with ITW’s or the carrier’sinstructions. Title and risk of loss for the Products shall transfer to ITWupon delivery and acceptance of the Products at the named place of delivery inaccordance with the applicable Order. If, in order to comply with ITW’s requireddelivery date, it becomes necessary for Seller to ship by a more expensive waythan specified in an Order, any increased transportation costs shall be paidfor by Seller, unless the necessity for such rerouting or expedited handlingwas caused solely by ITW. If delivery of Products is not or will not becompleted by the date indicated on the Order, ITW may cancel the Order bynotice effective when received by Seller, purchase substitute Productselsewhere, and charge Seller for any loss incurred. 100% on-time delivery isrequired. If Seller fails to deliver the Products by the delivery date, thepurchase price will be reduced by an amount equal to 1% of the original pricefor each business day that the failure continues or, in ITW’s sole discretion,any late fees or additional cost incurred by ITWmay be offset against any amounts owed to Seller. ITW is notobligated to accept early deliveries, late deliveries, partial delivers orexcess deliveries.
9.     Packaging; Marking; Shipping. Seller will: (a) properly pack, mark, andship Products according to the
requirements of ITW, the involved carriers and the country of destination; (b)route the shipments according to ITW’s instructions; (c) label or tag eachpackage according to ITW’s instructions and any applicable government orregulatory requirement; (d) provide papers with each shipment showing the Ordernumber, amendment or release number, ITW’s part number, Seller’s part number(where applicable), number of pieces in the shipment, number of containers inthe shipment, Seller’s name and number, and the bill of lading number; and (e)promptly forward the original bill of lading or other shipment receipt for eachshipment according to ITW’s instructions and carrier requirements. Seller willprovide all special handling instructions that are needed to advise carriers,ITW, and their employees how to take appropriate measures while handling,transporting, processing, using or disposing of the Supplies, containers, andpacking.
10.  Inspection / Non-Conforming Shipments orServices. ITW may inspect or test asample or 100% of Products (at ITW’s option) at any time during manufacture,prior to shipment or after delivery and may reject all or any portion of ashipment if ITW determines a Product to be defective or nonconforming. Further,Seller shall bear any inspection or testing costs incurred by ITW if suchinspection or testing finds that a delivered Product is defective ornonconforming. If inspections or tests are made on Seller’s premises, Sellerwill, without additional charge, provide reasonable facilities and assistancefor the safety and convenience of ITW’s inspectors. Notwithstanding any priorinspection or testing, payment or passage of title, all Products and Servicesare subject to final inspection and acceptance at the destination of theProducts and Services. Payment for Products or Services delivered hereunder oracceptance of delivery will not constitute acceptance by ITW of such Productsor Services. Products or Services rejected or supplied in excess of quantitiescalled for under an Order may be returned to Seller at Seller’s expense. ITWwill not be required to make any payment for such Products.
11.  Warranty. Seller warrants that all Products shall:(a) conform to all ITW specifications; (b) conform to any ITW sample or ITWmodel; (c) be free from defects in design, workmanship and materials; (d) benew and free from liens or encumbrances; (e) be adequately packaged, marked,and labeled in accordance with ITW’s requirements and all applicable laws; (f)be merchantable and fit for the intended purpose; (g) not infringe on theIntellectual Property (as defined below) of any third party (h) not contain anymaterials or substances prohibited by applicable law or by any national orinternational regulations applicable to Seller or ITW. Inspection, testing,acceptance or use of the Products will not affect Seller’s obligations underthis warranty. Seller’s warranty will run to ITW, its successors, assigns andcustomers and users of the Products. With respect to Services, Seller warrantsthat (a) it will perform Services in a timely, competent and professionalmanner and in accordance with industry standards; (b) its employees and agentsproviding Services will have the proper skill, training and background so as tobe able to perform the Services in a competent and professional manner, andwhere applicable, shall be certified, licensed or otherwise authorized as necessaryto perform the Services; and (c) the Services and any deliverables shallconform to any applicable specifications or statement of work.
12.  Remedies. If the Products do not comply with theProduct warranty (such Products referred to as “Nonconforming Products”),Seller shall, at ITW’s sole discretion, promptly repair or replace anyNonconforming Products free of charge, or grant ITW a credit or full refund inan amount equal to the purchase price of the Products. Seller is responsiblefor all costs incurred by ITW in connection with the nonconformity, includingcosts associated with the unpacking, sorting, examining, repacking, relabeling,retesting, reworking and reshipping. Seller shall pay for all recall costsarising out of or in connection with the Nonconforming Products. If Seller isunable to remedy such nonconformity within ITW’s required time frame, ITW orthe third party of ITW’s choice may take steps to remedy the nonconformity, andin such case, Seller shall reimburse ITW for any costs incurred by ITW. Selleracknowledges and agrees that money damages will not be a sufficient remedy forany actual or threatened breach of the Agreement by Seller and that, inaddition to all other rights and remedies that ITW may have, ITW will beentitled to specific performance and temporary, preliminary and permanentinjunctive relief in connection with any action to enforce the Agreement.Additionally, if Seller fails to perform any of its obligations under theAgreement, ITW and its agents may (but shall not be obligated to), withoutlimiting or affecting any of its other rights and perform such obligationswithout waiving orreleasing Seller from such obligations. Whereapplicable, ITW and its agents shall be entitled to enter upon Seller’spremises to perform, and/or to remove any ITW Tooling (as defined below) andall materials and equipment necessary to perform such obligations. All costs,damages and expenses incurred directly or indirectly by ITW in connection withthe foregoing, including legal and other professional fees and ITW’sadministrative time, labor and materials, shall be paid by Seller to ITW ondemand or, at ITW’s sole option, may be set off against and deducted from anyamounts then owing by ITW to Seller.
13.  Limitationof Liability. ITW WILL NOT BE LIABLE,AND SELLER WAIVES ALL CLAIMS AGAINST ITW, FOR INDIRECT, INCIDENTAL, SPECIAL,PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS OR COMMERCIALLOSSES, WHETHER BASED UPON ITW’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITYIN TORT AND/OR ANY OTHER CAUSE OF ACTION. ITW’S LIABILITY IN CONNECTION WITHTHE AGREEMENT OR THE PURCHASE OF PRODUCTS OR SERVICES SHALL NOT EXCEED THEPURCHASE PRICE OF THE PRODUCTS OR SERVICES FOR WHICH THE CLAIM IS MADE.
14.  Ownershipof Intellectual Property.All drawings, know-how, designs, specifications, technical or businessinformation, related material, and the like disclosed to Seller by ITW and allrights therein will remain the property of ITW and will be kept confidential bySeller in accordance with these terms and conditions. The Seller shall have noclaim to, nor ownership interest in, any information provided or communicatedby ITW, and such information, in whatever form and any copies thereof, shall bepromptly returned to ITW upon written request from ITW. Seller acknowledgesthat no license or rights of any sort are granted to Seller under the Agreementwith respect to any rights in ITW’s information, ownership, devices, processes,or other intellectual property arising therefrom. Should the Seller perform“development work” (which shall include the creation of know-how andimprovements) pertaining to the material covered by this Purchase Order, ITWshall have a full and complete, worldwide, irrevocable, non-exclusive, royalty-freelicense to make, have made, use or sell, distribute, import or export, any suchmaterial. To the extent applicable, the work product provided by Seller underthis agreement is a “work made for hire,” as that term is defined by applicablecopyright laws, and is owned by ITW. To the extent any created items are notconsidered “works made for hire,” Seller hereby transfers all ownership rightsand interest in and to the created items to ITW. Seller hereby waives anyrights under the U.S. Copyright Act, 17 U.S.C. § 101, et seq., to terminatethis transfer, as well as any moral rights that may exist in the created items,including but not limited to the right of attribution and the right ofintegrity. With respect to moral rights that cannot be or are not waived: (i)the Seller shall, despite the transfer referred to in the present Article, notexercise any of its rights, title and interests involved, including but notlimited to, any moral rights, in a manner that directly or indirectly harm thecommercial interests of ITW; (ii) the Seller confirms that with regard to moralrights of the creators, all creators that created intellectual property andother materials for Seller expressly waive, have waived and agree to waivetheir paternity right. In any case, the creators will refrain to exercise theirmoral rights in a manner that directly or indirectly harm the commercialinterests of ITW. Regarding any right of integrity that cannot be or is notwaived, the creators shall only be able to oppose modification(s) of their workinsofar as its honor or reputation can be damaged; and (iii) the Sellerconfirms: (a) that the Seller in any case waives the right to see its namelisted as the author of the intellectual property and other materials and thatITW is allowed to disclose the intellectual property and other materials. TheSeller guarantees that the rights granted to ITW on the basis of this presentArticle, include the rights, title and interest related to the intellectualproperty and other materials its employees, consultants and independentcontractors may or may assert in the future, and that the necessary agreementsto do so were entered into with its employees, independent consultants andcontractors.
15.  ConfidentialInformation. All information furnishedor made available by ITW to Seller in connection with the Products or Servicesshall be held in confidence by Seller. Seller will not use (directly orindirectly), or disclose to others, such information without ITW’s prior writtenconsent. These obligations will not apply to any information that: (a) at thetime of disclosure was or thereafter becomes generally available to the publicby publication or otherwise through no breach by Seller of any obligationherein; (b) Seller can show by written records was in Seller’s possession priorto disclosure by ITW; or (c) is legally made available to Seller by or througha third party having no direct or indirect confidentiality obligation to ITWwith respect to such information. Seller agrees that it will not make use of,eitherdirectly or indirectly, any of the Confidential Information thatit receives or has received from ITW, other than for the purpose for which theConfidential Information has been disclosed.
16.  No Publicity. Seller will notadvertise, publish or disclose to third parties (other than to Seller´sprofessional advisors on a need-to-know basis) in any manner the fact thatSeller has contracted to furnish ITW the Products covered by the Order or theterms of the Order, or use any trademarks or trade names of ITW in any pressrelease, advertising or promotional materials, without first obtaining ITW’swritten consent.
17.  Indemnification. Seller agrees to defend and indemnify ITW,its suppliers, customers, users, and licensors, and each of their affiliates(as they may exist from time to time), employees, shareholders, officers,directors and agents (“Indemnified Parties”), from and against any and allloss, liability, demand, claim, damage, injury, loss of profits or expense(including attorneys’ fees) arising out of or relating to: (a) any breach ofSeller’s representations, warranties or obligations; (b) any act or omission bySeller, its officers, employees or agents (including Seller’s subcontractorsand their employees and agents); (c) any claim for royalties or license fees,in connection with the purchase, use or sale of the Products; and (d) death orany bodily injury, damage to property or any other damage or loss resulting orclaimed to result in whole or in part from the Products. Each Indemnified Partymay, at its option, be represented by its own counsel in any action, theexpenses of which shall be borne by Seller.
18.  Insurance. Seller will maintain, at its own expense,the following insurance policies: (a) Commercial General Liability in an amountof not less than US$ 5,000,000 each occurrence and in the aggregate for bodilyinjury and property damage and US$ 5,000,000 any one person or organization forpersonal and advertising injury for premises operation, products/completedoperations, blanket contractual liability, and broad form property damage; (b)Workers’ Compensation in full compliance with the laws of any applicable stateand/or country, at not less than statutory limits; (c) Commercial AutomobileLiability for owned, hired and non-owned motor vehicles in an amount not lessthan US$ 5,000,000 combined single limit; and (d) Employer’s Liability andOccupational Disease in an amount of not less than US$ 5,000,000 each accidentfor bodily injury and US$ 5,000,000 each employee and in the aggregate fordisease. The limits of coverage required may be satisfied by a combination ofprimary and excess or umbrella insurance policies. Except for Workers’Compensation, Seller shall include ITW and its affiliates as an AdditionalInsured on all required insurance policies described above. Upon ITW’s request,Seller shall provide ITW a certificate of insurance evidencing such coverage.Seller shall provide no less than 30 days’ advance notice to ITW beforecancellation of the foregoing coverage.
19.  Spare Parts and ITW Tooling. Seller will maintain the capability to supply and providetechnical support for spare or replacement parts for the longer of (i) a periodof fifteen years after the delivery of the Products, (ii) for such period asITW is required by its customer(s) to provide spare or replacement partsincorporating the Products or (iii) for such period as may be required by law(such period, the “Spare Parts Period”). Seller will give ITW a last time buyoption at the end of such Spare Parts Period, and shall offer any follow-onproducts that are compatible with the Products. Unless otherwise agreed to inwriting by ITW, the price(s) during the first five (5) years of the Spare PartsPeriod will be those in effect at the conclusion of current model purchases,plus any actual and documented costs for special packaging, shipping orhandling. For the remainder of the Spare Parts Period, the prices(s) forProducts will be as agreed to by the parties.
20.  Tooling. If requested by ITW, Seller agrees toitemize and/or sell to ITW any tooling that is built or procured by Seller thatis required for the manufacture, testing or maintenance of Products. Thepurchase price of such tooling shall not exceed the book value. If ITW electsto purchase such tooling, upon ITW's payment therefor, title shall transfer toITW. In the event Seller discontinues the manufacture of any Product, Sellershall provide ITW with no less than nine months advance written notice andshall provide any transition assistance required by ITW. ITW may providepatterns, dies, fixtures, molds, jigs or other tools or directly or indirectlypay for tools for use in making Products (“ITW Tooling”). Unless approved inwriting by ITW in advance, Seller shall not (i) remove or relocate any ITWTooling; (ii) use the ITW Tooling for any other products or any other customerother than for those Products provided to ITW under the applicable Order; (iii)make any changes to ITW Tooling; or (iv) reverse engineer any ITW Tooling. ITWTooling (including replacements) shall remain ITW’s property, be segregatedfrom Seller’s property, and be individually and conspicuously marked as ITW’sproperty. ITW reserves the right to remove or relocate the ITW Tooling at anytime and, upon ITW’s request,Seller shall, at its cost, transfer possession of the ITW Toolingto ITW free and clear of liens and encumbrances and at the time and placedesignated by ITW. Seller shall maintain, at its cost, all tooling (includingITW Tooling, Seller Tooling and replacement tooling) in good condition and atITW’s option promptly repair, replace or pay for its replacement at Seller’scost if lost, damaged, destroyed, or otherwise rendered unfit for use.
21.  Continuityof Supply. Upon ITW's request, Sellershall maintain ITW's continuity of supply with respect to a Product in amutually agreed upon manner, such as by agreeing upon the terms of a"lifetime buy" or executing an escrow or license agreement. In theevent of, or in preparation for, any material risk impacting Seller’s abilityto supply Products in a timely manner and/or the expiration or a termination ofthe Agreement for any reason, Seller shall use commercially reasonable effortsto transfer, or cooperate fully with ITW to enable ITW to transfer, theperformance of Seller’s obligations under the Agreement to ITW or a third partysupplier designated by ITW, in a manner that (i) minimizes the time to completesuch transfer; (ii) maintains the highest quality and performance to ensure theadequate supply of Products; and (iii) causes no disruption to ITW's customers'requirements. Seller shall notify ITW promptly in writing of any changes in thesupply chain which may impact Seller’s ability to meet forecasted or in the absenceof a forecast, historic demand. Seller shall be responsible for all lossesincurred by ITW as a result of Supplier’s failure to supply. In the event of adispute, Seller shall continue to comply with its obligations hereunder untilsuch dispute is resolved.
22.  Consignment. ITW may notify Seller that it wishes to have Products sold to alocation on a consignment basis (a “Consignment Location”). Seller will deliverto each Consignment Location the quantity and type of Products ordered by ITW(“Consignment Products”). ITW will notify Seller monthly (or other frequency asdetermined by ITW) of its use of the Consignment Products, and Seller may billITW for such use of the Consignment Products. Title and risk of loss toConsignment Products passes to ITW only after ITW uses or resells theConsignment Products. ITW may, at any time upon written notice to Seller,terminate further purchases of Consignment Products for any ConsignmentLocation and ITW may purchase some or all of the remaining ConsignmentProducts. Any Consignment Products not purchased by ITW will be returned toSeller at Seller’s cost and risk of loss. All other provisions of the Agreementapply to Consignment Products, except to the extent this section conflicts withany other provision of the Agreement.
23.  Software. In the event the Products include or incorporate Software ownedor licensed by Seller (“Software”), Seller hereby authorizes ITW to sell,resell, modify and or license the Software to ITW’s customers. Use of theSoftware by ITW’s end user customers shall be subject to Seller’s End UserLicense Agreement, if applicable (the “EULA”). In the event Seller’s end usercustomer reasonably objects to any provisions of the EULA, Seller shallcooperate in good faith with ITW in making commercially reasonable modificationsto the EULA. In the event of a conflict between these Terms and the EULA, theseTerms shall govern. Seller hereby warrants that any Software delivered underthe terms of this Agreement is in compliance with all applicable Open Sourcelicenses and that use by ITW or its customers will not violate any applicableOpen Source licenses. Seller further warrants that any use by ITW or itscustomers of any Software delivered under the terms of this Agreement will notobligate or require ITW or ITW’s customers to modify, change or add to theSoftware in any way in order to comply with any Open Source licenses.
24.  Compliance. Seller agrees to comply with all federal,state, local and foreign rules, regulations, ordinances and laws applicable toSeller’s obligations hereunder and Seller’s manufacture and sale of theProducts and Services, including import/export laws, labor laws, andanti-corruption laws. Seller also agrees to comply with all applicableenvironmental, health and safety laws, and laws against slavery, humantrafficking and child labor. Sellers and subcontractors are notified that theymay be subject to the provisions of: 41 CFR Section 60-300.5(a); 41 CFR Section60-741.5(a); 41 CFR Section 60-1.4(a) and (c); 41 CFR Section 60-1.7(a); 48 CFRSection 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A with respectto affirmative action program and posting requirements. Seller andsubcontractor shall abide by the requirements of 41 CFR §§ 60-300.5(a) and60-741.5(a). These regulations prohibit discrimination against qualifiedindividuals on the basis of protected veteran status or disability, and requireaffirmative action by covered prime contractors and subcontractors to employand advance in employment qualified protected veterans and individuals withdisabilities.
25.  Supplier Conduct. Seller agrees to comply with ITW’s Code of Conduct posted at https://investor.itw.com/governance/documents/default.aspx, as applicable to it. Additionally, Seller agrees to comply withall the requirements in ITW’s Supplier Code of Conduct and SupplierExpectations, each as amended from time to time and as posted at https://www.itw.com/suppliers/.
26.  Responsible Materials. Upon request of ITW, Seller shall adopt a policy and exercise duediligence on the source and chain of custody of the tantalum, tin, tungsten,and gold or any other materials of interest in the products they manufacture toreasonably assure that they are sourced in a way consistent with theOrganisation for Economic Co-operation and Development (OECD) Guidance forResponsible Supply Chains of Minerals from Conflict-Affected and High-RiskAreas or an equivalent and recognized due diligence framework. Seller shallalso take such additional actions and provide such additional informationrequested by ITW as may be necessary in order for ITW to be or remain compliantwith applicable laws, rules and regulations relating to any materials in ourvalue chain. See ITW’s Responsible Materials Policy Statement for further information.
27.  Customs. The Seller shall make available to the ITW and any party designated by ITW any and all documents and data necessary to effect customs clearance, including the importer security filing and shall provide any assistance deemed necessary by ITW. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the Products imported under any Order, such additional costs shall not be passed through to ITW.
28.  Audit. Seller shall maintain and shall direct al lsub-tier sellers to maintain complete and accurate records, books of account,reports and other data necessary for the proper administration of the Agreement on a generally recognized accounting basis. Such materials shall include anyrebate programs and any other special pricing program extended to Seller. ITWmay audit and inspect Seller’s books and records. If any audit or inspectionreveals an error or irregularity in the computation of prices or any other costs,an appropriate adjustment shall be made by Seller. Further, if such audit orinspection demonstrates that an error or irregularity occurred and caused theprices to be computed in Seller’s favor, then Seller shall pay all costs andexpenses incurred by ITW with respect to such audit or inspection. Suchadjustment, costs and expenses shall be paid within 60 days of notice to Sellerby ITW. Seller shall, at ITW’s request, permit ITW or a third party designatedby ITW to have reasonable access to designated areas within its facilitiesdirectly relating to the production and packaging of the Products for thepurpose of performing production and quality audits. ITW shall conduct any suchaudit only during Seller’s normal working hours.
29.  Relationship of the Parties. Nothing in the Agreement or the course of dealing of the partiesmay be construed to constitute the parties hereto as partners, joint venturersor as agents for one another or as authorizing either party to obligate theother in any manner.
30.  Force Majeure. If the performance by either party or anyobligation under the Agreement is prevented, restricted or interfered with byany act of God, embargo, war, acts of terrorism, civil unrest or any law,order, proclamation, demand or requirement of any governmental agency orsimilar event beyond such party’s reasonable control (each, an “Event of ForceMajeure”), such party shall promptly give the other party written notice of theEvent of Force Majeure. Delays caused by labor disputes, tariffs,non-performance by Seller’s suppliers, delays or cost increases intransportation, changes in cost or availability of raw materials or componentsbased on market conditions, pandemic or scheduled downtime for maintenanceshall not constitute an Event of Force Majeure. No later than 48 hours afterthe occurrence, Seller will provide written notice describing such delay andassurance of when the delay will be cured. If an Event of Force Majeure occursthat affects delivery of Products to ITW, Seller will prioritize ITW and allocatethe available inventory in a manner which ensures that ITW’s demands are metfirst. During the delay, ITW may at its option: (a) cancel any Orders andpurchase Products or Services from third parties and invoice Seller for anydifference in price paid to such third-party by ITW and the price set forth inthe Order; (b) to the extent available, require Seller to deliver all finishedgoods, work in process, tooling, and parts and materials produced or acquiredfor work under the Order; or (c) have Seller provide Products or Services fromother sources and at the price set forth in the Order.
31.  Assignment; Binding Effect. No assignment of any rights or interest or delegation of anyobligation of Seller under the Agreement may be made without the prior writtenconsent of ITW. Any attempted assignment will be void. ITW may assign theAgreement or otherwise transfer its rights and/or obligations under theAgreement. The Agreement will inure to the benefit of and be binding upon eachof the parties hereto and their respective permitted successors and assigns.
32.  Remedies and Waiver. Except asspecifically set forth herein, all rights and remedies under the Agreement arecumulative, and the exercise of any right or remedy herein provided shall bewithout prejudice to the right to exercise any other right or remedy. If ITWfails to insist upon strict compliance with the Agreement, ITW’s actions willnot constitute a waiver of Seller’s default or any other existing or futuredefault, or affect ITW’s legal remedies.
33.  Bankruptcy. If either partybecomes insolvent, is unable to pay its debts when due, files for or is thesubject of involuntary bankruptcy, has a receiver appointed or has its assetsassigned, the other party may cancel any unfulfilled obligations hereunderwithout liability for such cancellation.
34.  Dispute Resolution. If the ITW entity which is a part to thedispute is a legal entity formed in the United States, any dispute arising outof or related to the Agreement will be governed by and construed in accordancewith the laws of the State of Illinois without regard to or application of itsprinciples or laws regarding conflicts of laws, and excluding the UnitedNations Convention on the International Sale of Goods of 1980 (together withany amendments or successors thereto, the “UNCISG”) and litigated exclusively ina state or federal court located in Cook County, Illinois. The parties heretoexpressly release and waive any and all rights to a jury trial and consent tohave any dispute heard solely by a court of competent jurisdiction. If the ITWentity is a legal entity formed outside the United States then any disputearising out of the Agreement will be governed by and construed in accordancewith by the laws of the country where the ITW entity was formed, excluding theUNCISG if applicable in such country. Any dispute involving an ITW entityformed outside the United States and arising out of or related to the Agreementwill be finally resolved by a panel of three arbitrators in accordance with theRules for Arbitration of the London Court of International Arbitration.Judgment upon the award rendered by the arbitrators may be entered by any courthaving jurisdiction thereof. The location of arbitration and the language ofarbitration will be selected by ITW. Either party may apply to the arbitratorsto seek injunctive relief until the arbitration award is rendered or thecontroversy is otherwise resolved. The award shall be final and binding on bothITW and Seller, and the parties hereby waive the right of appeal to any courtfor amendment or modification of the arbitrators’ award. In any action betweenthe parties concerning any provision of the Agreement, the prevailing party isentitled, in addition to the relief granted, to a reasonable sum for theirattorneys’ fees incurred in such litigation or mutually agreed upon alternativedispute resolution, provided if each party prevails in part, such fees will beallocated in the manner as the court or mediator determines to be equitable inview of the relative merits and amounts of the parties’ claims.
35.  Survival. Any provisions inthe Terms which, by their nature, extend beyond the termination or expirationof any sale of Products or Services, will remain in effect until fulfilled.36.  Severability. If any provisionherein is held to be unlawful or unenforceable, the remaining provisions hereinwill remain in effect.37.  Integration and Modification. The Agreement constitutes the entire agreement between ITW andSeller with respect to the Products and Services, and supersedes any prioragreements, understandings, representations and quotations with respectthereto. No modification hereof will be of any effect unless in writing andsigned by the party to be bound thereby.
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