1.1 “Order”, “purchase order” or “contract” means any agreement between Mohawk and the Seller for the supply of goods and/or services;
1.2 The “goods” means the subject matter of the orders and includes services;
1.3 “purchase order Requirements” means the special requirements listed in detail on the Mohawk purchase order;
1.4 “Vendor” or “Seller” means the contracting party with whom the purchase order is placed;
1.5 “Government” means the United States Government or any department or agency thereof;
1.6 “Confidential Information” shall include all materials marked “Proprietary Information” of Mohawk;
1.7 “Indemnified parties” means all Vendors, users or operators of the goods or services delivered in accordance with Mohawk’s specifications;
1.8 Mohawk and the Vendor are sometimes referred to singularly as “Party” and together as “Parties”.
SCOPE OF WORK/ACCEPTANCE
2.1. Scope of Work. The Vendor is required to perform only the requirements listed in the body of the purchase order and covered by these Terms and Conditions. The Vendor will not be required to perform any processes not specifically mentioned. If a Vendor is not able to meet the contractual obligations of a purchase order, it has three (3) business days to notify Mohawk from its receipt; otherwise Mohawk will consider the purchase order accepted by the Vendor per Paragraph 2.2 (Acceptance of Mohawk’s Offer) below.
2.2. Acceptance of Mohawk’s Offer. Any purchase order issued by Mohawk to a Vendor is an offer by Mohawk which becomes binding on the terms contained therein and herein when it is accepted by that Vendor. A Vendor will be deemed to have accepted such offer on Mohawk’s terms if the Vendor: A) commences working on the goods or providing the services, B) ships the goods which are the subject of the purchase order, C) issues a written Order Acknowledgement, or D) has not notified Mohawk’s Purchasing Agent of any conflicts within the time specified. Any acceptance by a Vendor of a purchase order is limited to acceptance of the Express Terms, i.e., the specific requirements laid out therein, including documents and/or drawings incorporated in the purchase order by reference and these General Terms and Conditions.
2.3. Attempts to Alter Terms Rejected. Any attempt by a Vendor to alter the terms offered by Mohawk, or to propose additional terms, will be considered invalid and thereby rejected unless Mohawk specifically accepts in writing such alterations. Altered or additional terms proposed by the Vendor and deemed rejected by Mohawk hereby will be considered a material alteration of Mohawk’s offer. Any such material alterations to an offer not agreed to by Mohawk are considered rejected by the Vendor; as such, Mohawk’s offer will be formally rescinded.
2.4. Prior Offer by Vendor. If any purchase order issued by Mohawk to a Vendor is deemed to be an acceptance of a prior offer by Vendor, Mohawk’s acceptance of said prior offer shall be bound to the Terms and Conditions at the time the order is placed. In Prior Offer cases, any terms included in the Vendor’s offer outside of Mohawk’s express and General Terms and Conditions will be deemed material alterations and rejected by Mohawk.
SHIPPING, HANDLING AND INSURANCE
The Vendor shall follow all applicable transportation regulations and good commercial practice for handling to preserve, package and contain shipments in order to prevent deterioration and damage during transport. Mohawk-specific instructions for packaging and shipping and insurance requirements shall be flowed down as an Express Term in the purchase order. The use of newsprint for packaging is prohibited. Shipments containing fabricated and/or custom order materials and/or parts must be insured. Vendors will be charged for damage resulting from improper packaging, handling, and/or transport including leaving shipments uninsured. Hazmat: the Vendor shall follow applicable Federal, state and local laws and regulations regarding packaging, marking and transportation of hazardous materials.
INVOICING, PAYMENT TERMS
4.1. Invoicing. In order to be considered for payment, each invoice must include the following: purchase order number, line item number, description, unit price, quantity, line total (extended price) from Mohawk’s purchase order, as well as type and amount of applicable taxes. Electronic invoices are to be sent to [email protected]; mail physical invoices to 1037 WATERVLIET-SHAKER ROAD, ALBANY, NY 12205-2033 USA. Mohawk may require a Vendor’s certification that all goods and services reflected therein were produced and supplied in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the U.S. Department of Labor issued thereunder.
4.2. Delays for Non Compliance. Failure to comply with these invoice requirements may result in a delay in payment and a postponement of the due date until such a time that a Vendor has remedied the non-compliance.
4.3. Offset, Withholdings. Mohawk may offset against any amounts due under Vendor’s invoices: (a) any damages resulting from Vendor’s default under or breach of any contract (including any purchase order and these Terms and Conditions); or (b) any amount owing from Vendor to Mohawk; or (c) any adjustment for shortage or rejection and any costs occasioned thereby. In the event that Mohawk becomes aware of potential violation of any Governmental law, regulation or order or contractual obligation by Vendor in relation to its performance hereunder, Mohawk may withhold, without liability or interest, any payment due hereunder associated with matters relating to such potential violation, pending investigation and resolution of such potential violation.
4.4. Payment Terms. Unless otherwise provided under the applicable purchase order or written agreement between Mohawk and Vendor, payment terms shall be net thirty (30) calendar days. The term of any payment provided for in the purchase order, and all discounts related thereto, shall be calculated from (i) the date the items are received, (ii) the date the items are scheduled to be received, or (iii) the date an acceptable invoice is received, whichever is latest.
4.5. Payment Date, Discounts. If, in its discretion, Mohawk accepts any shipment ahead of schedule, Mohawk may make payments therefor on the basis of the scheduled delivery date. The date for the calculation of Mohawk’s entitlement to take a discount under any Vendor invoice will be the date materials acceptable to Mohawk are delivered, or the date an acceptable invoice is received, whichever is the later.
4.6. Taxes. All prices indicated in purchase orders include all applicable taxes, impositions including but not limited to import and export duties and other similar charges, unless specifically indicated otherwise in such purchase order.
Delivery shall be Delivered Duty Paid (DDP) Incoterms® 2010 at Mohawk’s designated place of delivery stated on the purchase order.
5.1. Vendor will deliver acceptable goods and services in strict conformity with any delivery schedule set forth in any purchase order, subject to any delays as a result of any force majeure, or other circumstance or event beyond the reasonable control of Vendor. Vendor will bear the cost of any normal (except to the extent explicitly specified otherwise under the relevant purchase order) or extraordinary (in any case) shipping charges necessary to meet the delivery schedule specified in any purchase order.
5.2. The purchase order delivery schedule and quantities are to be strictly adhered to. Vendor will not deliver any goods or render any services in advance of the schedule specified in the relevant purchase order, and will not order materials or services necessary for delivery of goods or rendering of services to Mohawk in advance of Vendor’s normal and reasonable order requirements. Any goods delivered to Mohawk in advance of schedule may be returned by Mohawk to Vendor at Vendor’s cost, and will be stored by Vendor at Vendor’s cost. Any deviation from the delivery schedule and/or delivery quantities may result in the complete or partial return of the delivered product. Further, any delivery containing less than the scheduled delivery quantity may have payment withheld until the balance of the parts are delivered.
5.3. At Mohawk’s option and sole discretion, should Vendor fail to deliver any goods ordered under a purchase order by Mohawk within the delivery date for reasons other than those set forth in Section 28 (Force Majeure), in consideration of the difficulties in calculating the damages which any such delay would cause to Mohawk, Vendor shall pay to Mohawk, as liquidated damages, a sum equal to one-half percent (0.5%) of the price of the delayed goods for each complete day of delay or, if greater, any amount of liquidated damages Mohawk owes to its customer as a result of Vendor’s failure to timely deliver. The total amount to be paid by the Vendor to Mohawk as liquidated damages shall not exceed twenty percent (20%) of the price of the delayed good(s).
MOST FAVORED CUSTOMER
Vendor warrants that it will not charge Mohawk more for any goods or services, or any item thereof, than it charges any other customer for such goods or services. Vendor will adjust prices upon discovery of any amounts paid by Mohawk, which reflect a breach by Vendor of the immediately preceding sentence and refund any excess payments made by Mohawk. Mohawk or its representatives may at any time audit all pertinent books, records and files of Vendor in order to verify compliance with this Section.
7.1. Right to Inspect. All goods and services ordered by Mohawk pursuant to any purchase order are subject to inspection before or after receipt by Mohawk, notwithstanding the earlier passing of title to Mohawk, or any prior payment by Mohawk, or any prior inspection of any type. Mohawk’s inspection may, in its sole discretion, include physical, visual and/or mechanical review, as well as any documentation necessary to substantiate the meeting of quality requirements or specific requirements set forth in the purchase order.
7.2. Correction, Rejection. If any goods and services are in Mohawk’s reasonable business judgment defective in material or workmanship or not in conformity with the drawings, specifications, samples or other requirements of the relevant purchase order, Mohawk shall notify Vendor. If Vendor fails to correct the defect or non-conformity within a timeframe appropriate to support Mohawk’s manufacturing needs after such notice or is unable to correct the defect or nonconformity, Mohawk may, in addition to any other rights under the purchase order, these Terms and Conditions or otherwise, correct or have corrected the defect or nonconformity at Vendor’s expense. Rejected goods may be returned by Mohawk to Vendor at Vendor’s risk and expense, including without limitation all costs (including Mohawk’s personnel costs) of unpacking, examining, repacking and reshipping, and transportation of, such goods.
7.3. Right of Recovery. In addition to any other rights it may have under the relevant purchase order, these Terms and Conditions, or otherwise, Mohawk may recover any and all costs, expenses and damages paid, incurred or suffered as a result of or relating to holding, returning, replacing, correcting or rejecting defective or nonconforming goods or services to the extent that such costs, expenses or damages resulted from Vendor’s action or inaction. Mohawk may, at its discretion, invoice or debit the Vendor’s account in the amount of all such costs incurred.
7.4. On-site Inspection. Work performed under any Mohawk purchase order is subject to inspection at Vendor’s plant by authorized representatives of Mohawk, Mohawk’s customers or their customers or any Governmental entity asserting authority or jurisdiction, or, in the case of a Government contract, the Government, during normal business hours upon reasonable prior notice to conduct inspections and tests of any finished or unfinished products subject to any Mohawk purchase order. Vendor will make available its facilities to accommodate the safety and reasonable convenience of such representatives. Vendor will include a like provision in its subcontracts issued in conjunction with any Mohawk purchase order. When reasonably requested upon reasonable prior notice, representatives of Vendor will accompany Mohawk, its customers or their customers or the Government to Vendor’s subcontractor’s facilities for such inspection and testing, at no additional cost to Mohawk or Mohawk’s customer.
7.5. Right of Entry. Mohawk and its customers, subcontractors and regulatory agencies shall be allowed entry and are hereby authorized to enter into the premises of the Vendor to inspect and otherwise verify the quality of work, records and material at any place including the Vendor and Vendor’s subcontractor manufacturing facilities. Vendor must coordinate any such entry with Mohawk’s Purchasing Department.
7.6. No Waiver. The inspection, review or approval by Mohawk of any work, or of any drawing, design or other document, will not be deemed to relieve Vendor of any of its obligations under any purchase order or constitute a waiver of any defects or nonconformities. The acceptance by Mohawk of any goods or services under any purchase order will not be deemed to limit or affect any warranty or right of indemnity granted by Vendor under such purchase order, these Terms and Conditions or otherwise.
8.1. Changes and Adjustments. Mohawk may at any time, by written order (and without notice to sureties), make changes within the general scope of any purchase order in any one or more of the following: (i) drawings, designs, specifications or other technical documents; (ii) quantity, (iii) time and place of delivery; and (iv) delivery schedules. Without limiting the foregoing, Mohawk may at any time and from time to time modify its Shipping Packing, and Marking Instructions or the Invoicing Instructions contained above by delivery of a revised version thereof to Vendor. Vendor will implement any such changes; provided, that if any such change causes an increase or decrease in the cost of or time required for performance of any work under a purchase order, an appropriate adjustment in the price and/or delivery schedule will be agreed to by Mohawk and Vendor. Notwithstanding the foregoing, no adjustment to the benefit of Vendor will be made: (a) for any change to delivery schedule when delivery is rescheduled within twelve (12) months of the originally scheduled delivery date; or (b) for any change made necessary by reason of defects or nonconformities for which Vendor would be liable under the terms of the order and these Terms and Conditions or otherwise; or (c) for any change to delivery schedule if the amended delivery schedule is commensurate with any delivery schedule changes received by Mohawk from its customer. Any claim by Vendor for adjustment will be made in writing within twenty (20) calendar days from the date the change was ordered by Mohawk, and will set forth the amount claimed and the reasons therefore. Upon prior written request and subject to Mohawk maintaining the confidentiality thereof, Vendor will make available its books and records for Mohawk’s examination to allow Mohawk, its authorized representatives and its customers (including the Government if this is a Government contract) to verify any claim for adjustment by Vendor. If Mohawk and Vendor are unable to agree upon an adjustment in the event of any change directed by Mohawk, the matter will be resolved in accordance with the dispute resolution procedures set forth in the Section 35 of these Terms and Conditions entitled “Dispute Resolution.” Pending resolution of any such adjustment, Vendor will diligently pursue the performance of the order as changed. Notwithstanding the above, if Mohawk enters into an agreement with a customer, which provides for no cost increase as a result of changes to delivery or work schedule, this same provision will apply to any purchase order(s) issued hereunder to the Vendor.
8.2. Changes. Changes may be asserted for only if the recurring and/or nonrecurring cost is equal to or greater than three (3) percent of the then current unit price. Price changes are on a per claim basis and cannot be combined.
8.3. Authority to Order Changes. Changes may be ordered by Mohawk only in writing issued by an authorized representative of Mohawk’s Purchasing Department, which expressly states that it constitutes a change to a specified purchase order. If Vendor believes that any other conduct has constituted a change under an order, it will notify Mohawk immediately in writing as to the nature of such conduct and its effect upon Vendor, but will take no steps to implement a change absent written direction from an authorized representative of Mohawk’s Purchasing Department consistent with the preceding sentence.
SUSPENSION OF WORK
Mohawk may, at any time, by written stop-work order to Vendor, require Vendor to stop all, or any part, of the work called for by a purchase order for a period of ninety (90) calendar days after the order is delivered to Vendor, or longer in the event of a design change or if Mohawk receives a stop-work order from its customer, and for any further period to which the Parties may agree. Upon receipt of the order, Vendor will immediately take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the order during the period of work stoppage. Within the indicated ninety (90) day or other longer period, Mohawk will either (i) cancel the stop work order, or (ii) let such stop-work order expire, or (iii) terminate the work covered by the stop-work order either for default if Mohawk has given notice of such default to Vendor and Vendor has had a reasonable period of time to correct such default or for convenience as set forth in the Section 20 below entitled “Termination For Convenience”, in accordance with these Terms and Conditions and the relevant purchase order. Upon cancellation or expiration of a stop work order, the Vendor shall immediately resume work under the affected purchase order. If a stop work order is cancelled or allowed to expire, and the suspension effected thereby has a material effect on Vendor’s costs or ability to meet the purchase order’s delivery schedule, Mohawk will make an adjustment in the delivery schedule or purchase price (but with no increase in profit allowed), or both, and the purchase order will be modified accordingly, but only if requested by Vendor in writing within thirty (30) days after the suspension ends.
Vendor warrants to Mohawk that all goods and services furnished to Mohawk will conform to applicable specifications, instructions, drawings, blueprints, data, samples and any other descriptions, will be of good material and workmanship and free from defects, including defects in design where design is Vendor’s responsibility, and will be free from all liens and encumbrances, and will be new, merchantable and fit for the purpose intended. All warranties will survive inspection, test and acceptance of and payment for the relevant goods and services. This warranty shall be for a period sixty (60) months, unless a different term is stated in prevailing contract documents.
10.1. This warranty shall run to Mohawk and its successors, assigns and customers. This warranty shall begin after Mohawk’s final acceptance. Mohawk may, at its option, either (i) return for credit or refund, or (ii) require prompt correction or replacement of the defective or non-conforming goods. Vendor will bear all direct and indirect costs associated with Return to Vendor of defective or non-conforming goods and redelivery to Mohawk and its customers of corrected or replaced goods, all of which shall be at Vendor’s expense. Vendor shall be liable for all costs of inspecting, assessing, gaining physical access to, and removal and reinstallation of any installed non-conforming goods or services or adjoining goods at Mohawk or Mohawk’s customer. Mohawk may, at its discretion, invoice or debit the Vendor’s account in the amount of the warranty costs incurred.
10.2. Deliveries of corrected or replaced goods or services shall be accomplished promptly and shall be accompanied by written notice specifying that such goods or services are corrected, repaired or replaced. Mohawk’s remedies with respect to this warranty shall not be limited, restricted or disclaimed in whole or part by any other terms or conditions. Mohawk retains all its rights at law and in equity for Vendor’s breach of warranty.
10.3 Goods required to be corrected or replaced shall be subject to this Section 10 (Warranties) and further inspection rights in the same manner and to the same extent as goods originally delivered under this contract, but only as to the corrected or replaced part or parts thereof. Even if the Parties disagree about the existence of a breach of this warranty, Vendor shall promptly comply with Mohawk’s direction to (i) repair, rework or replace the goods or (ii) furnish any materials or parts and installation instructions required to successfully correct the defect or nonconformance.
Vendor will submit progress reports and other charts and materials to provide complete visibility of planned program tasks and progress against such tasks, in any format or schedule requested by Mohawk.
Vendor will maintain the confidentiality of all information furnished by Mohawk as confidential and will not disclose any such information to any other person, or use such information for any purpose other than performing under the purchase order to which it relates. The preceding sentence applies, without limitation, to designs, inventions, software programs, source codes, materials, models, processes, drawings, specifications, data, reports and other technical or business information and the features of all parts, equipment, tools, gauges, patterns and processes disclosed to Vendor by Mohawk; and, to information supplied in electronic form, including CAD/CAM and computer aided engineering data. Vendor will not sell any such information, and will deface or otherwise render unsuitable for use any such information of which Vendor disposes. Upon fulfillment or termination of any purchase order, and as otherwise directed by Mohawk, Vendor will at its own expense, subject to the specific instructions of Mohawk, either dispose of all information supplied by Mohawk or return such information to Mohawk. Mohawk or its representatives may at any time audit all pertinent books, records and files of Vendor in order to verify compliance with this Section. Vendor will, in all of its contracts with its Vendors relating to any Mohawk purchase order, include provisions, which secure for Mohawk the rights and protections provided for by this Section. Notwithstanding the foregoing, the term “Confidential Information” shall not include any information that is: (a) in the public domain through no fault of Vendor; or (b) independently developed by Vendor without breaching this Contract or by parties who have not had, either directly or indirectly, access to or knowledge of the Confidential Information. The foregoing obligations are in addition to and not as a replacement for any obligations under any nondisclosure agreements in place between the Parties.
PATENT INFRINGEMENT INDEMNITY
Vendor will defend Mohawk, subcontractors of Mohawk, and any subsequent customers, owners, Vendors, users or operators of the goods or services delivered in accordance with Mohawk’s specifications (herein the “indemnified parties”) against all claims and in all proceedings alleging infringement of any United States or foreign patent or copyright in the manufacture or sale of any goods or services delivered to Mohawk, and Vendor will indemnify and hold the indemnified parties harmless from any resulting liabilities and losses.
NON-DISCLOSURE OF TRANSACTIONS
Vendor will not, and will require its Vendors and subcontractors to not, advertise or publish the fact that Mohawk has ordered goods or services from Vendor, or the terms or nature of such order. Vendor will not, and will cause its employees and other representatives to not, disclose such information in company periodicals, press releases, public lectures, theses, sale or other promotional literature, or otherwise, unless such disclosure has been approved in advance by Mohawk in writing.
INTELLECTUAL PROPERTY RIGHTS
15.1. All intellectual property rights (including without limitation patents, utility models, design rights, copyrights, trademarks, rights in Confidential Information including know-how, in each case whether registered or unregistered and including all applications or rights to apply for such rights) in any and all specifications, designs, drawings, notes, data, documentation, information and other intellectual property that: (i) are supplied by or on behalf of Mohawk to the Vendor; and/or (ii) arise from the performance of work in pursuance of a purchase order; and/or (iii) are included in the goods or services supplied by Vendor under any purchase order, shall (in the case of (i) above) remain the property of Mohawk and (in the case of (ii) and (iii) above) be considered as a work for hire and be deemed to be the property of Mohawk, and the Vendor shall promptly take all necessary steps and do all necessary acts (at Vendor’s sole expense) to vest such intellectual property rights in Mohawk. Vendor assigns all rights, title and interest to any such design and any such copyright to Mohawk including all rights to registration, publication, rights to create derivative works and all other rights that are incident to ownership. In the event that any court holds such creative works not to be works for hire, Vendor agrees to assign such intellectual property rights to Mohawk at Mohawk’s request in consideration of the price paid for goods or services hereunder.
15.2. Such intellectual property and intellectual property rights shall not be used by Vendor except to the extent required for the purposes of the purchase order, nor copied or communicated by Vendor to any other party, without the prior express written consent of Mohawk.
15.3. All such specifications, designs, drawings, notes, data, documentation, information and other intellectual property referred to above shall be returned/provided (together with all copies thereof) to Mohawk immediately upon request or in any event on completion or termination of the purchase order or upon termination of this Contract.
15.4. The Vendor represents and warrants that the purchase, use, sale and/or other exercise of the goods or services by Mohawk and/or its customers will not infringe any intellectual property right(s), including without limitation any patent, utility model, design right, copyright, trade mark, right in confidential. Information including know-how, in each case whether registered or unregistered, in existence or pending anywhere in the world at the date of delivery of the goods or services supplied.
TOOLS AND MATERIALS
Title to and the right of immediate possession of all tools, dies, patterns, software, numerically controlled media and programs, manufacturing programs, replacements and materials used by Vendor in manufacturing goods under a purchase order (“special tooling and materials”) will be and remain in Mohawk (or Mohawk’s customer if applicable). All special tooling and materials will not be used in the production of larger quantities than those specified by Mohawk in a purchase order. Upon completion of any relevant purchase order, all special tooling and materials will be delivered to Mohawk or disposed of by Vendor as Mohawk shall direct. All special tooling and materials will be segregated by Vendor at Vendor’s plant and clearly marked as belonging to Mohawk and will be used solely in the performance of work ordered by Mohawk, will be insured against loss by the Vendor, and will not be copied, and will be delivered by the Vendor to Mohawk upon demand. Vendor assumes complete liability for all special tooling and materials while in Vendor’s possession. Vendor will reimburse Mohawk for damage to Mohawk’s special tooling beyond normal wear and tear while in Vendor’s possession. Mohawk reserves the right to use at any time all special tooling and materials. Vendor will be responsible to Mohawk for any and all consigned materials. Vendor will communicate to Mohawk, in such manner and such times as Mohawk directs, any and all instances wherein Vendor fails to yield prescribed requirements from Mohawk’s material. Upon completion of specific purchase order requirements, Vendor will furnish to Mohawk any and all residual materials and an accounting of any and all deviations from the prescribed order requirements. At Mohawk’s direction, Vendor will at its cost return to Mohawk any “off fall” material. If any item fabricated by Vendor from material furnished by Mohawk is defective, or any furnished material is damaged while in Vendor’s possession, Vendor will reimburse Mohawk to the full extent of its damages.
Vendor will defend, indemnify and hold harmless Mohawk and its affiliates, and their officers, agents, employees, successors and assigns, against any claims, loss, damage or expense, including, without limitation, payment of direct, special, incidental and consequential damages, and expenses of defending claims including attorneys’ fees, arising out of or relating to Vendor’s breach of obligations or negligence or willful misconduct with respect to the order. This duty to defend, indemnify and hold harmless extends only to any suit, claims, judgment or demand which arises out of or in connection with Vendor’s performance or nonperformance of any purchase order placed by Mohawk, out of or in connection with Vendor’s breach of warranty, out of any defect in the goods or services whenever discovered, out of any patent infringement or misappropriation of trade secrets by Vendor other than pursuant to specifications or instructions provided by Mohawk, or failure of Vendor to pay royalties, or any other breach of Vendor’s obligations hereunder whether such claim or suit is based upon contract, warranty, strict liability in tort, negligence, or other legal theory, and also extends not only to “third party claims” but also to any loss suffered by Mohawk.
Vendor will, at all times, maintain with reputable insurance companies, comprehensive general liability insurance in the minimum amount of $1 million USD and aviation products liability insurance in the minimum amount of $50 million USD (both to include coverage for any liability under any Mohawk purchase order and these Terms and Conditions). At Mohawk’s request, Vendor will name Mohawk as an additional insured under such policies, and will provide to Mohawk a certificate of such insurance providing for thirty (30) days prior written notice to Mohawk of cancellation or material change. Vendor will maintain workers’ compensation insurance sufficient to cover all of its general and special employees engaged in work pursuant to any Mohawk purchase order and insurance against liability for personal injury or death or destruction of or damage to property arising out of work in fulfillment of any Mohawk purchase order, and will provide prompt evidence to Mohawk of such coverage upon Mohawk’s request.
19.1. “Default”. Time is of the essence in the purchase order. It is a default under any purchase order and these Terms and Conditions if Vendor: (i) refuses or fails to deliver any goods or perform any services within the time specified in such purchase order except as provided herein; (ii) fails to comply with any other provision of such purchase order or these Terms and Conditions; (iii) fails to make progress so as to endanger performance of such purchase order in accordance with its terms and these Terms and Conditions, or repudiates such purchase order; or (iv) suspends its business or become insolvent or subject to any law relating to bankruptcy, insolvency or relief from creditors, or takes any action in anticipation thereof.
19.2. Termination for Default. In the event of any default by Vendor under any purchase order or these Terms and Conditions, Mohawk may terminate such purchase order (and all related purchase orders), with no liability owed to Vendor whatsoever. In the event of any such termination for default, Vendor will be liable to Mohawk for any and all damages resulting from Vendor’s default. If Mohawk terminates any purchase order for default in whole or in part, it may acquire, under commercially reasonable terms supplies or services similar to those terminated, in which case Vendor will be liable for any excess costs for those goods or services. Upon a termination in part, Vendor will continue any work not terminated. If, after termination, it is determined that the Vendor was not in default, or that the default was excusable, the rights and obligations of the Parties will be the same as if the termination had been issued for Mohawk’s convenience under the Section 20 below entitled “Termination for Convenience.” The rights and remedies of Mohawk in this Section are in addition to any other rights and remedies provided by law or under this contract.
19.3. Remedies. The rights and remedies herein reserved to Mohawk shall be cumulative and additional to any other rights and remedies provided in law or equity, including without limitation the right to reclaim goods delivered if payment is not made when due.
19.4. Cancellation. Mohawk may cancel any purchase order at any time without cost to Mohawk in the event that Mohawk’s customer cancels a corresponding order to Mohawk.
TERMINATION FOR CONVENIENCE
Whether or not a purchase order relates to a Government contract, Mohawk may terminate any purchase order in whole or in part for any reason in accordance with the procedures established in the termination clause set forth in the United States Federal Acquisition Regulation (FAR 52.249-2) and the policies and principles set forth in Part 49 of the FAR, all of which are hereby incorporated by reference, except that in FAR 52.249-2: (i) the term “Contractor” shall be deemed to mean Vendor; (ii) the terms “Contracting Officer” and “Government” shall be deemed to mean Mohawk; (iii) the one (1) year period in paragraph (d) for submitting a final termination settlement proposal is reduced to sixty (60) days; and (iv) the ninety (90) day period in paragraph (k) for submission of a proposal for an equitable adjustment of the price in the event of a partial termination is reduced to thirty (30) days.
20.1. The Vendor shall use its best efforts to mitigate the costs arising from such termination. In no case shall the amount payable by Mohawk for the terminated work exceed the price which would have been payable by Mohawk had the work been completed.
20.2. Mohawk reserves the right to take possession of and title to any partly completed work, including but not limited to any relevant tools, fixtures, jigs or documentation. The failure of Vendor to file a claim within the applicable period in accordance with the FAR and this Section 20 (Termination For Convenience) will constitute a waiver and be the basis for a complete denial of any such claim.
20.3. The provisions of this Section 20 (Termination For Convenience) shall not be deemed to limit or affect the rights or remedies of Mohawk provided elsewhere in any purchase order, these Terms and Conditions, or provided by law in the event of default or breach by the Vendor.
20.4. Limitation of Liability. Mohawk shall not be liable to Vendor for manufacture or procurement of materials in advance of the leadtime in accordance with the latest purchase order delivery schedule. If any revision of the Order or forecast affects a good for which Vendor was authorized to commence manufacture by prior versions of the Order or forecast in accordance with leadtime requirements, Mohawk shall be liable for manufacture of goods within the leadtime requirements of such prior Order or forecasts. As a material term of this contract Vendor agrees that any manufacture or order of materials in advance of Vendor’s lead-time shall be solely at Vendor’s risk and Mohawk assumes no liability for manufacture or procurement in advance of Vendor’s lead-time. In the event of a termination or an engineering change resulting in obsolescence, no claim will be allowed for any such manufacture or procurement in advance of such leadtime unless an update to the Order or Forecast: (i) affects a good for which Vendor was authorized to commence manufacture by the prior revision of the Order or forecast in accordance with leadtime requirements; (ii) Vendor notified Mohawk in writing of the specific good affected; and, (iii) Vendor complied with the written direction of the Mohawk with respect to such affected good(s).
Vendor represents and warrants that all of the goods and services provided by Vendor will comply, and will be manufactured and furnished by Vendor in compliance with, all applicable federal, state and local laws, regulations, orders and ordinances, including the Export Regulations (defined below) and including those applying to goods sold to the U.S. Government or for shipment in interstate commerce, and upon reasonable request Vendor will provide evidence of such compliance.
Vendor hereby certifies that the goods called for by the purchase order have been or will be produced in compliance with the Fair Labor Standards Act of 1938 (29 U.S. Code 201-219) and, insofar as applicable to the purchase order, the Walsh-Healey Public Contracts Act (41 U.S. Code 35-45) and the Work Hours Act of 1962 (40 U.S. Code 327-332), and any amendments thereof. Vendor further certifies that it has and will comply with Executive Order 13201 issued February 17, 2001 and any successor executive order and all laws and regulations concerning the export and import of goods and technical data. Vendor agrees upon request to supply all certifications and information reasonably requested by Mohawk.
To the extent not exempt, Mohawk and Vendor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. In addition, Mohawk and Vendor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. To the extent not exempt, Mohawk and Vendor shall also abide by the requirements of 29 CFR Part 471, Appendix A to Subpart A.
EXPORT COMPLIANCE, RELEASE OF TECHNICAL INFORMATION
Technical information or data, whether classified or otherwise, shall not be disclosed by Vendor to any person or entity in violation of the Export Administration Regulations (EAR) of the United States Department of Commerce, 15 C.F.R. Subtitle B, Chapter 7, Subchapter C; the International Traffic in Arms Regulations (ITAR) of the United States Department of State, 22 C.F.R. Chapter 1, Subchapter M; OFAC Sanctions of the Department of Treasury, 31 C.F.R. Subtitle B, Chapter 5; or any other applicable laws or regulations of the United States (“Export Regulations”). Vendor shall require each person to whom they wish to disclose EAR-controlled and/or ITAR-controlled information to certify agreement to EAR and/or ITAR non-disclosure requirements. Vendor will provide verification of the individual certifications upon request from Mohawk. Vendor will also provide citizenship verification information, evidence of completed denied parties checks and description of applicable export authorizations obtained upon request from Mohawk for each person or entity to whom they wish to disclose EAR and/or ITAR controlled information or for whom they wish to request badge access to any Mohawk site. Vendor will complete these compliance activities prior to disclosure of controlled information. In performing under any purchase order, Vendor shall further perform all of its obligations in compliance with the Export Regulations.
Vendor is required to provide a Material Safety Data Sheet (MSDS) if a product is hazardous as defined in OSHA 29 CFR 1910.1200. All MSDS will be provided to the appropriate Mohawk site as stated in the purchase order. This provision applies to all orders for chemical products and raw stocks/substrates. Although this provision includes orders for hazardous materials and chemical substances, it is not restricted to such products and may include materials such as raw stocks, substrates, resins, and broad goods.
25.1. The Vendor represents, warrants and undertakes that the supply of products to Mohawk is in compliance with the European Union Regulation Number 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACh”) (as may be amended and supplemented from time to time); and
25.2. The Vendor where applicable (i) guarantees that all supplied chemicals to Mohawk (whether such chemicals are supplied on their own, as part of a preparation (as defined in REACh) or within any supplied article (as defined in REACh)) have been registered with, authorized by or notified to the European Chemicals Agency and appropriately labeled as required by REACh whether that be by the Vendor, by the Vendor’s Vendor (or in the case of a non-European Community Vendor by the Vendor’s “only representative” pursuant to Article 8 of REACh); (ii) undertakes to cooperate with Mohawk and the European Chemicals Agency to ensure that any registration, authorization or notification is made to the European Chemicals Agency in accordance with REACh and to keep Mohawk fully informed with requisite documentation to comply with REACh; (iii) guarantees that for all chemicals supplied by the Vendor to Mohawk (whether such chemicals are supplied on their own, as part of a preparation (as defined in REACh) or within any supplied article (as defined in REACh)), Mohawk’s usage of such chemical substances is covered by any REACh registration or REACh authorization and is included in any safety data sheets or exposure scenarios for such chemical substances; (iv) has notified and shall notify Mohawk from time to time of any and all chemical substances listed in Annex XIV of REACh (as may be amended or supplemented from time to time) (Substances of Very High Concern (SVHC)) in any products to be supplied or supplied by the Vendor to Mohawk; and (v) shall procure that its Vendors are in compliance with this paragraph in respect of any chemical substances which the Vendor subsequently supplies (whether such chemicals are supplied on their own, in preparations (as defined in REACh) or within any supplied article (as defined in REACh)) to Mohawk.
25.3. Vendor shall bear all costs, charges and expenses related to pre-registration, registration, evaluation and authorization under the REACH regulation of the chemical substances that are the subject of the Order.
If Vendor is a registrant with the Securities and Exchange Commission (SEC), Vendor shall comply with all the reporting requirements regarding conflict minerals as defined by the SEC at 17 CFR PARTS 240 and 249b, (Dodd-Frank Act Section 1502). Vendor shall perform appropriate due diligence on its supply chain in order to assist Mohawk and its customers to fulfill the reporting obligations of the conflict minerals rule. Vendor shall, no later than thirty (30) days following each calendar year in which Vendor has delivered any Products to Mohawk, under a purchase order or otherwise, complete and provide to Mohawk a single and comprehensive report consistent with industry practice.
ANTI-BRIBERY AND ANTI-CORRUPTION REQUIREMENTS
27.1. Vendor shall (i) comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption including but not limited to the US Foreign Corrupt Practices Act (Relevant Requirements) and the UK Bribery Act 2010; (ii) have and shall maintain in place throughout the term of fulfilling an order, its own policies and procedures to ensure compliance with the Relevant Requirements and will enforce them where appropriate; (iii) promptly report to Mohawk any request or demand for any undue financial or other advantage of any kind received by the Vendor in connection with the performance of a purchase order;
27.2. Vendor shall ensure that any person associated with Vendor who is performing services or providing goods in connection with fulfilling a purchase order does so only on the basis of terms equivalent to those imposed on Vendor in this clause (Relevant Terms). Vendor shall be responsible for the observance and performance by such persons of the Relevant Terms, and shall be directly liable to Mohawk for any breach by such persons of any of the Relevant Terms.
SECURITY OF INFORMATION STORED BY VENDOR
28.1. This section shall apply if Vendor receives and holds Mohawk Information on its information systems. Mohawk wishes to ensure that Vendor has effective information security to ensure the secure storage and/or processing of Mohawk Information (as defined below) at Vendor’s facility and to facilitate the exchange of information between Mohawk and Vendor. As used in this provision, “Mohawk Information” means (i) Proprietary or Confidential Information owned by Mohawk or a Mohawk Affiliate (each such entity, a “Mohawk Entity”); (ii) information managed by Mohawk or a Mohawk Entity; (iii) information that Mohawk or a Mohawk Entity is obligated to manage and protect on behalf of others; and (iv) personally-identifiable information relating to an identified or identifiable employee of Mohawk or a Mohawk Entity or others that is protected by various privacy laws (current or future) as applicable throughout the world including, without limitation, Social Security Number, address, telephone number, gender, birth date, medical records, trade union membership, driver’s license number, financial account number, credit or debit card number (all subsection (iv)) defined as “PII”).
28.2. Vendor agrees to install and implement security hardware, software, procedures and policies that will provide reasonable and effective information security. Vendor agrees to update such hardware, software, procedures and policies as may be needed from time to time to utilize improved technology and to respond to more sophisticated security threats in order to maintain a level of security protection appropriate for the information involved and the current state of security solutions.
28.3. Vendor shall use reasonable efforts, as measured by the available technology at the time, to prevent anyone other than its authorized employees from accessing the Mohawk Information and assure that all Mohawk Information and applicable software is appropriately backed up and recoverable in the event of a disaster.
28.4. When Vendor is transmitting Mohawk Information, Vendor shall use encryption algorithms of sufficient strength to equate to 128-bit RC-4 or better. All cryptography technologies used must be published and approved by the general cryptographic community.
28.5. Vendor shall not to store PII on any Vendor mobile computing devices (e.g. laptop computers, PDAs (personal digital assistants), etc.)
28.6. Vendor shall conduct appropriate background checks on all non-Mohawk personnel who will have access to the environment and/or Mohawk Information and approve those personnel based on the results of those checks. Vendor must disclose to Mohawk the procedures used for those employees having access to the Mohawk Information, if requested.
28.7. Vendor shall provide information and cooperation to Mohawk in response to any subpoena, investigation or the like seeking Mohawk Information and provide information and assistance for Mohawk to seek certification and the like relative to its information including information in the possession of Vendor. Vendor shall promptly notify Mohawk upon the receipt of any request requiring that Mohawk Information be supplied to a third party.
28.8. The foregoing provisions do not otherwise diminish or limit Vendor’s obligations regarding the receipt, use, protection and/or disclosure of Mohawk Proprietary Information otherwise set forth hereunder.
ORDER OF PRECEDENCE
In the event of any conflict between these General Terms and Conditions and the terms of any purchase order or other applicable materials, except as otherwise explicitly agreed in writing by Vendor and Mohawk, the order of precedence will be: (i) in the case of any purchase order ultimately relating to a U.S. Government contract, the FAR; (ii) the terms of any signed long term contract between the Parties; (iii) these Terms and Conditions; (iv) the terms of any purchase order to the extent they are other than those set forth in these Terms and Conditions; (v) project specifications; and (vi) project drawings.
Deliveries or acceptance will be subject to extension of time made necessary by reason of delays or disabilities directly affecting Vendor or Mohawk, respectively, occasioned by fires, floods or other catastrophes, wars, riots or embargo delays, Government allocations or priorities, unforeseeable Government restrictions or controls, or unusually severe weather conditions, to the extent such delays and disabilities are beyond their reasonable control in spite of prudent precautions. Performance may be delayed only to the extent reasonably caused by such event, and upon prompt written notice of the event. If such delay continues for more than ninety (90) calendar days, Mohawk may terminate in accordance with Section 19 (Default) above.
NOTIFICATION OF VENDOR LABOR DISPUTES
Vendor will promptly notify Mohawk if any actual or potential labor dispute threatens to delay the timely performance of any Mohawk purchase order. Such notice will include all relevant information with respect to such dispute. Neither receipt of such notice by Mohawk nor any provision of these Terms and Conditions will be deemed to be a waiver by Mohawk of any of its rights under any purchase order, these Terms and Conditions, at law or otherwise, except as provided herein.
With respect to any purchase order ultimately relating to a U.S. Government contract, the accompanying Schedule A and all Sections thereof forms an integral part of these Terms and Conditions. By notice to Vendor, Mohawk may supplement Schedule A with additional sections when Federal Acquisition Regulations are modified to provide for additional mandatory flow-down requirements, and these changes shall be made without cost to Mohawk.
ASSIGNMENT AND SUBCONTRACTING
Neither a purchase order nor any interest in a purchase order may be assigned, in whole or in part, by the Vendor without prior written approval by Mohawk; a change of control of the Vendor shall be considered an assignment requiring prior written approval hereunder. Any such attempted assignment without consent shall be void and shall have no effect. Neither the entirety nor any part of any purchase order may be further subcontracted by the Vendor without the prior written approval by Mohawk.
WAIVER AND SEVERABILITY
The failure or delay of either party to insist on performance of any provision of these Terms and Conditions or any purchase order, or to exercise any right or remedy available under these Terms and Conditions or any purchase order, will not be construed as a waiver of that provision, right, or remedy in any later instance. Further, if any provision of these Terms and Conditions or any purchase order is or becomes void or unenforceable by operation of law, the remaining provisions shall be valid and enforceable.
Any dispute that arises under or is related to a purchase order and that relates to a matter that gives Mohawk recourse against the Federal Government under the prime contract or applicable law shall be resolved as follows:
35.1. Vendor will give Mohawk a fully supported written claim concerning any such dispute within one (1) year after the claim accrues, but in no event later than final payment under the purchase order, or Vendor shall be barred from any remedy for such claim.
35.2. For any such claim of more than $100,000, Vendor shall submit with the claim a certification to Mohawk and to the contracting officer for the prime contract that: (i) the claim is made in good faith, (ii) the supporting data are accurate and complete to the best of Vendor’s knowledge and belief, and (iii) the amount requested accurately reflects the contract adjustment for which Vendor believes the Government is liable; furthermore, such certification shall be executed by a person duly authorized to bind Vendor, and Vendor shall indemnify and hold Mohawk harmless from damages, judgments, costs (including reasonable attorneys’ fees), and other liabilities arising from any breach of such certification of any violation of Section 5 of the Contract Disputes Act of 1978 (41 U.S.C. 604) or any violation of common law or statutory prohibitions against misrepresentations, fraud or false statements.
35.3. Vendor and Mohawk will cooperate fully in prosecuting any such claim and will be bound by the outcome.
35.4. Vendor and Mohawk will each bear their own costs of prosecuting any such claim.
35.5. Nothing in a purchase order or contract grants the Vendor a direct right of action under the Disputes clause of the prime contract.
35.6. In case of any dispute, claim or controversy arising in any way, directly or indirectly, from or relating to any purchase order or any performance or work thereunder, the Parties shall use all reasonable efforts to resolve the dispute in the ordinary course of business and by discussion and meeting prior to commencement of any litigation or other proceeding.
35.7. Waiver of Jury. The Parties agree that any dispute, claim or controversy shall (if a trial occurs) be tried to the court sitting without a jury, notwithstanding any constitutional or statutory rights or provisions.
35.8. Venue and Jurisdiction. With respect to any dispute involving a purchase order, the Parties consent to jurisdiction and venue in any state or federal court in the State of the Mohawk location issuing the purchase order.
35.9. Continue performance during disputes. Pending final resolution of any dispute arising under or relating to a purchase order, the Parties will proceed with performance of the purchase order, and Vendor’s performance will be in accordance with Mohawk’s written instructions, notwithstanding any rights to suspend or stop performance which might otherwise apply.
CHOICE OF LAW
These Terms and Conditions and any purchase order shall be governed by the laws of the State of the Mohawk location issuing the purchase order, except that any provision in the purchase order or contract that is (i) incorporated in full text or by reference from the Federal Acquisition Regulation (“FAR”), or (ii) incorporated in full text or by reference from any agency regulation that implements or supplements any FAR provision, shall be construed and interpreted according to the federal common law of Government contracts as enunciated and applied by federal judicial bodies, Board of Contract Appeals, and quasi-judicial agencies of the Federal Government.
INTEGRATION AND MERGER
These Terms and Conditions together with any long term agreement referencing these Terms and Conditions, any nondisclosure agreement executed by the Parties, and any purchase orders issued to Vendor, including attachments and documents incorporated herein or therein by reference, constitute the entire agreement between Mohawk and Vendor, and supersede all prior representations, agreements, understandings, and communications between Mohawk and Vendor. No amendment or modification of this contract or a purchase order will be binding upon either Party unless it is set forth in a written instrument signed by authorized representatives of both Mohawk and Vendor. The rights and remedies afforded to either Party pursuant to any part or provision of these Terms and Conditions, any long term agreement or any Mohawk purchase order are in addition to any other rights and remedies afforded by any other parts or provisions of these Terms and Conditions, any long term agreement, purchase order, by law, or otherwise.
Last updated: Dec 12, 2018