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Terms and Conditions for Purchase Order

 

1.      INTRODUCTION: Unless otherwise agreed to in a written agreement signed by both Parties (as defined below), these Terms and Conditions for Purchase Order (“Terms and Conditions”) shall apply to each Order issued by Buyer. These Terms and Conditions are binding between the Supplier and Buyer, however, to the extent the Parties have executed a separate master services or framework agreement, then the master services or framework agreement shall apply and shall control in the event of a conflict between these Terms and Conditions and the master services or framework agreement. Supplier accepts the Order and agrees to be bound by these Terms and Conditions with respect to the Offerings described in the Order, without additions, deletions, or other modifications. Any terms or conditions contained in any acknowledgment, invoice, or other communication of Supplier are hereby objected to and rejected.

 

2.       DEFINITIONS:

 

Affiliates” means, with reference to a party, any company or other legal entity which: (i) controls either directly or indirectly, a Party; or (ii) is controlled, directly or indirectly, by a party; or (iii) is directly or indirectly controlled by a company or entity which directly or indirectly controls a party. For these purposes, “control” means the right to exercise more than fifty percent (50%) of the voting or similar right of ownership; but only for so long as such control shall continue to exist.

Buyer” means the CWT corporate entity identified in the Order and shall include its Affiliates.

“Buyer Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, and other material or information considered proprietary by Buyer relating to the current or anticipated business or affairs of Buyer which is disclosed directly or indirectly to Supplier, and any third party's proprietary or confidential information disclosed to Supplier in the course of providing the Offerings to Buyer.

Offerings” means the services, goods, materials, hardware, and software products being purchased or to be supplied as specified in the Order.

Intellectual Property” (IP) means all patents, rights to, copyright and related rights, trade marks, rights in confidential information and any other intellectual property rights, in each case whether registered or unregistered in any part of the world.

Order” means the purchase order or work statement, form or quote under which an order is placed by Buyer to Supplier covering the Terms and Conditions in relation to the supply of Offerings by the Supplier.

Party”; “Parties” Buyer and the Supplier are hereafter referred to collectively as the “Parties” or individually as a “Party”.

Sales Tax” means any sales, use, service, value added, goods and services, consumption, cess or duties or other similar taxes or duties including, but not limited to, Brazil’s ISS, PIS, COFINS, ICMS and IPI or Argentina’s Ingresos Brutos, in any country which are chargeable on any sum payable in connection with the purchase of the Offerings.

Supplier” means the corporate entity providing the Offerings and identified in the Order.

Supplier Personnel” means Supplier’s employees, agents, contractors, consultants, officers, representatives or designated third parties which are engaged by Supplier to provide the Offerings pursuant to these Terms and Conditions.

 

3.      PASSING OF TITLE AND RISK; SHIPMENT: Title to Offerings and risk of loss will remain with Supplier until delivery and acceptance (pending right to inspect) by Buyer at Buyer's requested destination. Payment shall not constitute acceptance by Buyer. Passing of property or title to the Offerings shall not affect the right to reject the Offerings. Shipment must arrive, and/or performance of services must occur, by or on the delivery date if specified on the Order. Time is of the essence with respect to each of the obligations set forth in the Order. The time stipulated for delivery of the Offerings shall be strictly adhered to. Supplier shall ensure that the Offerings are properly packed, marked, secured, and transported as specified in the Order, and if not specified, in a proper and suitable manner, consistent with industry practice so as to enable them to reach their destination in good condition and the Supplier shall deliver the Offerings to the Buyer during the Buyer's usual business hours or those otherwise agreed with the Buyer.

 

4.      DELIVERY, INSPECTION, AND ACCEPTANCE:

a.      If the Offerings are not delivered on time, or do not comply with the undertakings set out in the Supplier’s Obligations and Warranties section of these Terms and Conditions, then without limiting any of its other rights or remedies, and whether or not it has accepted the Offerings, the Buyer may exercise any one or more of the following remedies:

  i.     cancel the Order without any penalty to the Buyer;

  ii.     to reject the Offerings (in whole or in part) and return the Offerings to the Supplier at the Supplier's own expense;

  iii.     to require the Supplier to repair or replace the rejected Offerings, or to provide a full refund of the price of the rejected Offerings (if paid);

  iv.     claim damages for any additional costs incurred by the Buyer which are attributable to the Supplier’s failure to deliver the Offerings on the due date.

b.      Any of the following shall constitute an unqualified acceptance by Supplier of the Order: (i) acknowledgment of the Order, (ii) furnishing of any products or services under the Order, (iii) acceptance of any payment, or (iv) commencement of performance under the Order.

c.      Supplier must collect rejected Offerings within a reasonable period after notification of rejection.

d.      Supplier shall be responsible for ensuring all inspections and testing of the Offerings are properly and adequately performed. The Offerings shall be subject to final inspection and acceptance or rejection by the Buyer upon arrival at their destination as specified in the Order.

e.      Any services shall be subject to written acceptance by the Buyer at its sole discretion. Any maintenance services not accepted by the Buyer should be rectified by the Supplier at no additional cost within 14 calendar days of notification by the Buyer of the matter.

 

5.      CHANGES: Changes to these Terms and Conditions are not binding upon Buyer unless made in writing and signed by Buyer. Buyer reserves the right at any time to make changes to the Order, or any part thereof, upon written notice to the Supplier.  No change to or modification of the items, specifications, terms, conditions and prices appearing on the Order shall be binding upon the Buyer unless expressly agreed to in writing by the Supplier and the Buyer.

 

6.      CANCELLATION: Buyer has the right to cancel this Order, at any time, with or without cause, and without further obligation or liability as to all or any Offerings which Buyer has not then received. In addition, Buyer may cancel this Order immediately, without notice, upon breach by Supplier of its obligations hereunder, or based on Buyer's reasonable belief that Supplier is unable to fulfill its obligations. Upon cancellation, Supplier will immediately deliver to Buyer all Offerings ordered and in process, and Buyer will pay undisputed amounts for accepted Offerings through the cancellation date. Upon cancellation, Buyer has no further liability or obligation to Supplier except to pay for the Offerings up to the effective date of cancellation. In addition, upon cancellation, any Buyer data in Supplier's possession shall be returned to Buyer and removed from the Supplier's systems. Cancellation of these Terms and Conditions, however arising, shall not affect any of the Parties' rights and remedies that have accrued as of cancellation, including the right to claim damages in respect of any breach of these Terms and Conditions which existed at or before the date of cancellation. Any provision of these Terms and Conditions that expressly, or by implication, is intended to come into or continue in force on or after cancellation shall remain in full force and effect.

 

7.   CONSIDERATION/PRICE/PAYMENT:

a.      The price of the Offerings is the price stated on the Order. The Supplier must provide the acknowledged delivery receipt and a copy of the Order. The Supplier shall submit all invoices to the Finance/Accounting Department of the Buyer for payment processing. All invoices submitted to Buyer for payment must be itemized as shown on the Order and in the format acceptable to Buyer. The payment terms for purchase by Buyer are 45 days net term, except for any amount disputed by Buyer, and unless otherwise noted on the Order. Buyer shall have no obligation to pay any invoice/billing statement issued more than ninety (90) calendar days after delivery of all of the Offerings stated in the Order.

b.      The payment by Buyer of any amount (whether in dispute or not) will not constitute acceptance of the Offerings or admission of any liability or of any obligation to make that payment. The Buyer may deduct from monies due or to become due to the Supplier the following amounts (plus Sales Tax, if any, in respect of deductions payable):

  i.     all debts and monies due from the Supplier to the Buyer arising from or in connection with this Order; and

  ii.     all liabilities which the Buyer may have paid, suffered or incurred and which Supplier is liable to bear pay or reimburse to the Buyer.

 

8.      RIGHT TO REJECT:  In the event the Offerings delivered by the Supplier do not conform with the Order, whether by reason of not being of the quality or in the quantity or measurement stipulated, or being unfit for the purpose they are required, or shipped contrary to instructions, or in excess of the quantities requested, or substituted for Offerings described or not shipped in containers conforming to Buyer's specifications (or, in the absence of such specifications, in recognized standard containers conforming to carrier specifications), or allegedly violating any statute, ordinance or administrative order, rule or regulations, or not packaged, tagged, labeled, invoiced or stamped in compliance with any federal, state, or local law, rule or regulation, or allegedly infringing any patent, trademark or copyright, may be rejected by Buyer and returned or held at Supplier's expense or risk. Buyer may charge to Supplier all expenses of unpacking, examining, repackaging, storing and reshipping any Offerings rejected. Buyer’s right to reject and return or hold Offerings at Supplier's expense and risk shall, without limiting such right, extend to Offerings sold to Buyer, which is returned by Buyer's customers for any reason entitling Buyer to reject. If Buyer rejects, Buyer may, at Buyer's option, require Supplier to grant a full refund or credit to Buyer, in lieu of replacements, with respect to those rejected Offerings. Acceptance of any part of the Order shall not bind Buyer to accept future shipments of non-conforming Offerings, nor deprive it of the right to return non-conforming Offerings and any prior payments made by Buyer shall not prejudice the Buyer’s right of rejection.

 

9.      COVERS (ALTERNATIVES): In the event Supplier is unable to supply Offerings in accordance with this Order, Supplier must notify Buyer in writing within twenty-four (24) hours of the occurrence of such deficiency. Supplier must use its best efforts to provide substitute Offerings that strictly comply with the specifications (unless Buyer agrees otherwise in writing) and are deemed acceptable by Buyer in its sole discretion. If Supplier is unable to provide substitute Offerings acceptable to Buyer as necessary, Buyer may secure substitute Offerings from other sources. If the prices of any substitute Offerings (whether obtained by Supplier or Buyer) are greater than contracted with Supplier, then Supplier will reimburse Buyer the difference in price until Supplier is able to resume supply of the Offerings under these Terms and Conditions. This section shall not affect Buyer's right to cancel these Terms and Conditions, seek other damages or any other right or remedy that may be available.

 

10.   CONFIDENTIALITY: Supplier undertakes that it shall not at any time, and for a period of seven years after termination of these Terms and Conditions, disclose to any person any Buyer Confidential Information in connection with its performance hereunder and the Supplier shall comply with applicable data protection laws. Seller shall not use any Buyer’s Confidential Information for any purpose other than to perform its obligations under these Terms and Conditions. Buyer Confidential Information does not include any information (i) which Supplier lawfully knew without restriction on disclosure before Buyer disclosed it to Supplier, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Supplier, (iii) which Supplier developed independently without use of the Buyer Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Supplier by a third party as a matter of right and without restriction on disclosure. In addition, Supplier may disclose Buyer Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Supplier provides prompt notice to Buyer of such requirement prior to disclosure. Supplier agrees not to copy, alter, or directly or indirectly disclose any Buyer Confidential Information. Additionally, Supplier agrees to limit its internal distribution of Buyer Confidential Information to Supplier's agents who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Supplier's agents of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Supplier use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Buyer Confidential Information. Supplier further agrees not to use the Buyer Confidential Information except in the course of performing hereunder and will not use such Buyer Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Buyer Confidential Information with information of Supplier shall not affect the confidential nature or ownership of the same as stated hereunder. Supplier agrees not to design or manufacture any products which incorporate Buyer Confidential Information. All Buyer Confidential Information is and shall remain the property of Buyer. Upon Buyer 's written request or the termination of these Terms and Conditions, Supplier shall return, transfer, or assign to Buyer all Buyer Confidential Information.

 

11.   RIGHTS AND WORK PRODUCT:  Buyer owns all materials and any ideas embodied therein that may be developed or created during the provision of goods and/or services by Supplier for Buyer, and/or has the unlimited right to use said materials as may be required by Buyer. Supplier agrees to do and sign any and all documents required by Buyer to enable Buyer or its nominees to protect Buyer's rights in such materials. Such materials to be owned by Buyer are "works for hire" within the meaning of the law.  Neither Party will have the right or license to use the trade names, trademarks, logos, service names or service marks of the other, nor may either Party refer to the other in connection with any advertising, promotion, press release or publication unless it obtains the other Party's prior written approval. Supplier further agrees that it will not sell or otherwise transfer goods and/or services bearing any Buyer trademark, logo or other indicia of Buyer or its affiliates to any third party, except as contemplated herein, without the prior written authorization of Buyer.

 

12.   SUPPLIER’S OBLIGATIONS AND WARRANTIES:

a.      Supplier warrants that the Offerings correspond with the description in the Order and any applicable specifications and that the Offerings ordered shall be new (unless otherwise indicated in the Order), fit and safe for the purpose for which such Offerings are intended to be used by Buyer or Buyer 's customer, that all weights, measures, sizes are accurate and conform to applicable state and federal standards, and that the Offerings covered by these Terms and Conditions are merchantable and conform to all representations, descriptions, specifications, labels, advertising material and the like supplied by Supplier with reference thereto.

b.      Supplier warrants that use of the Offerings by the Buyer does not, and will not, give rise to any infringement or misappropriation of any Intellectual Property right of any third party.

c.      Supplier warrants that it will comply with applicable laws and regulations in supplying the Offerings, including without limitation all import, export, environmental, and data privacy laws and regulations; and any Offerings or data sent to Buyer shall (a) contain no hidden files; (b) not alter, damage, or erase any data or computer programs without control of a person operating the computing equipment on which it resides; (c) contain no key, node lock, time-out, scrambling device, or other function, whether implemented by electronic, mechanical or other means, which restricts or may restrict use or access to any programs or data; and (d) not contain harmful code.

d.      Any third party products sold by Supplier may carry their own warranties and Supplier shall pass through to Buyer any and all such warranties to the fullest extent. Exercise of such warranty shall be directly between Supplier and the third party provider.

e.      In the event any maintenance services are provided as part of a combined offering with the purchase of the Offerings, Supplier warrants that it will perform each maintenance service using reasonable care and skill and according to its current description (including any completion criteria) contained in these Terms and Conditions.  Supplier further warrants that the maintenance services shall not give rise to any infringement or misappropriation of any intellectual property right of any third party.

f.      This warranty clause is in addition to and not to the exclusion of any warranty or service guarantee stated in the Order, offered by the Supplier or implied or required by applicable law.

g.      Supplier warrants that it has the right, title and interest to convey the Offerings, that the Offerings are free of all liens and encumbrances and with full title guarantee (unless otherwise expressly stated in the Order), and do not infringe on any intellectual property interest. If at any time Supplier shall incur any indebtedness that has become a lien upon Offerings or any part thereof or which may become a claim against Buyer, Supplier shall immediately pay such claim or indebtedness or cause such lien to be release and discharged by giving bond or otherwise at its expense. Supplier further warrants that it possesses all licenses, qualifications, and registrations to produce the Offerings. Inclusion herein of expressed warranties and representations will not be deemed a waiver of such other warranties as may be implied or expressly set forth in law or fact. Any warranties, express or implied, will survive inspections, acceptance and payment by Buyer.

 

13.   DEFECTS: Buyer will give notice of observed defects. If the Offerings are defective or non-conforming, Supplier agrees, at Supplier's expense, to promptly remedy and replace such defects or nonconformities. In emergencies, or in the event Supplier fails to promptly remedy such defects, Buyer may remedy such defects and Supplier agrees to reimburse Buyer within 14 days upon receipt of invoice for the cost of doing so. Supplier will, on becoming aware of a defect in the design, construction, or functioning of the Offerings, or upon notice of a recall from federal or state authorities, provide notice of the defect to Buyer immediately as appropriate.

 

14.   INSURANCE: Supplier agrees to maintain Commercial General Liability, Auto Liability (where required under law), and Workers' Compensation insurance policies, with an insurer with a rating of A or above, throughout the term of these Terms and Conditions. The Commercial General Liability policy will include Products/Completed Operations, Personal Injury, Advertising Injury, and contractual liability coverage insuring against any and all liabilities incurred in connection with these Terms and Conditions by Supplier and its subcontractors in an amount of not less than $1 million per occurrence. The Auto Liability policy limit will be at least $1 million per occurrence. This insurance coverage can be provided by a combination of primary and excess liability insurance policies. In the event that a professional service is the subject of this contract, errors omissions coverage with a limit of at least $1 million per occurrence is required. Further, Buyer and its subsidiaries and Affiliates shall be named as an additional insured on all General Liability, Auto Liability, and excess liability policies. All policies, including the workers' compensation policy, shall include a waiver of subrogation in favor of Buyer. Supplier shall, upon acceptance of these Terms and Conditions, provide Buyer with a certificate of insurance.

 

15. INDEMNIFICATION: Supplier shall indemnify, hold harmless, and defend Buyer, its affiliates, and their respective officers, directors, customers, agents and employees (collectively, “Indemnitee”), against all claims, liabilities, damages, losses, and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Offerings provided under these Terms and Conditions, including, without limitation; (i) any claim based on the death or bodily injury to any person, destruction or damage to property; (ii) any claim based on the acts or omissions of Supplier or any Supplier’s Agents; (iii) any claim by a third party against an Indemnitee alleging that the Offerings, any provisions of goods or services or any other products or processes provided under these Terms and Conditions, infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, whether such are provided alone or in combination with other products, software, or processes; and (iv) from any deficiency (including penalties and interest) relating to any taxes or government levy, including but not limited to Sales Tax, which, by law, are the responsibility of Supplier and to reimburse Buyer for all accounting and counsel fees and expenses incurred in connection with an assessment of such a deficiency. Supplier shall not settle any such suit or claim without Buyer's prior written approval. Supplier agrees to pay or reimburse all costs that may be incurred by Buyer or the Indemnitees in enforcing this indemnity, including attorneys' fees. This clause shall survive termination of these Terms and Conditions.

 

16. LIMITATION OF LIABILITY: IN NO EVENT SHALL BUYER BE LIABLE TO SUPPLIER OR SUPPLIER’S AGENTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THESE TERMS AND CONDITIONS, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT THERE IS A FAILURE OF ANY AGREED REMEDY. In no event shall the Buyer’s liability to the Supplier exceed the total amount of fees actually paid by the Buyer to the Supplier hereunder except in the case of fraud or willful misconduct, personal injury or death.

 

17.   INSOLVENCY: Supplier will notify Buyer if Supplier becomes insolvent, files a petition for bankruptcy, makes an assignment for the benefit of creditors or if a receiver or trustee is appointed of or for any of Supplier's business.

 

18.   RIGHT TO AUDIT: Buyer will have the right to audit, and Supplier will provide Buyer’s employees and/or representatives with access to Supplier's and its subcontractor's premises, personnel, data, records, systems, controls, processes, and procedures relating to the Offerings to be provided by Supplier, for the purpose of determining, among other things: (i) whether the Offerings comply with Buyer’s requirements; (ii) whether the Offerings comply with any agreed upon quality levels, service levels, and other performance obligations under these Terms and Conditions (including those relating to applicable confidentiality and security requirements), and (iii) to verify that Buyer is being charged in accordance with agreed upon rates. If errors or deficiencies are identified by an audit or otherwise, the Supplier shall take prompt action to correct any deficiency and/or, in the case of error in charges paid by Buyer, to refund Buyer overages paid. In addition, in the event an error or deficiency is discovered, the cost associated with the audit will be the responsibility of the Supplier. The audit provisions herein will be applicable during the term of these Terms and Conditions and for a period of twelve (12) months thereafter.

 

19.   RELATIONSHIP: The relationship of the Parties is that of independent contractor. Nothing herein will be construed so as to constitute Supplier and Buyer as principal and agent, employer and employee, partners or joint ventures.

 

20.   CODE OF CONDUCT:

Supplier represents and warrants that it and the Supplier Personnel will, at all times:

a.      comply with the Responsible Supplier Code as set forth on Buyer’s website https://www.mycwt.com/content/dam/vision/pdf/responsible-business-ethics/cwt-responsible-supplier-code.pdf as may be amended from time-to-time. Breach of the Responsible Supplier Code shall be deemed a material breach of these Terms and Conditions;

b.      comply with the Information Security Terms as set forth on Buyer’s website https://www.mycwt.com/for-suppliers/information-security-requirements/ as may be amended from time-to-time. Breach of the Information Security Terms shall be deemed a material breach of these Terms and Conditions;

c.      where personal data is processed by the Supplier, it shall comply with the terms and conditions of Buyer’s Data Privacy Requirements set forth on Buyer’s website https://www.mycwt.com/content/dam/vision/pdf/mvcp/mm/DCDP.pdf as may be amended from time-to-time and which is incorporated herein. Breach of these Data Privacy Requirements shall be deemed a material breach of these Terms and Conditions; and

d.      where personal data of EU citizens is processed by the Supplier, it shall comply with the terms and conditions of the EU Standard Contractual Clauses and Supplemental Measures set forth on Buyer’s website https://www.mycwt.com/content/dam/vision/pdf/mvcp/mm/EUSCCP.pdf  and https://www.mycwt.com/content/dam/vision/pdf/mvcp/mm/EUSCC-SM.pdf, respectively, as may be amended from time-to-time and which is incorporated herein. Breach of the EU Standard Contractual Clauses and Supplemental Measures shall be deemed a material breach of these Terms and Conditions.

 

21.   MANUFACTURER’S WARRANTIES: To the extent that the benefit of any warranties made by the manufacturer or previous seller of the Offerings to the Supplier can be assigned to the Buyer, the Suppler shall assign them to the Buyer.  Until such assignment, the Supplier will co-operate with the Buyer in any reasonable arrangements to provide the Buyer with the benefit of such warranties or like condition including enforcement at the cost of and for the benefit of the Buyer.

 

22.   APPLICABLE LAW: These Terms and Conditions shall be exclusively governed by the exclusive laws of and all disputes relating to these Terms and Conditions shall be resolved exclusively in (i) England and Wales and governed by English law if the Supplier’s registered office is located in the Europe, Middle East, Africa (EMEA) region; (ii) Singapore if the Supplier’s registered office is located in Asia Pacific (APAC) region; or (iii) the State of New York, USA if the Supplier’s registered office is located the Americas region. All related disputes shall be resolved similarly under the corresponding country of the applicable law.

 

23.   TAXES:  All sums payable in connection with the purchase of the Offerings are expressed exclusive of Sales Taxes unless such Sales Taxes are not recoverable for Buyer. If chargeable, the Sales Taxes which can be recovered by Buyer will be payable in addition by Buyer in the manner and at the rate required by applicable law or regulation provided that Buyer shall not be obliged to pay any amount in respect of Sales Taxes to Supplier, whether recoverable or not for Buyer, unless and until Supplier produces an invoice (i) complying with such regulations as the authority responsible for the collection of Sales Taxes may stipulate, (ii) addressed to the Buyer legal entity mentioned in the Order as being the Buyer legal entity receiving the Goods and making the Payment and (iii) on which such Sales Taxes are separately itemized.

 

Any withholding tax required to be deducted from any payment by Buyer to Supplier for the purchase of the Offerings will be deducted by Buyer from the price of the Offerings at the rate applicable under the relevant bilateral tax treaty, if any, and in accordance with any documentation provided by Supplier prior to the payment being processed.

 

Upon written notification by Buyer and subsequent commercially reasonable verification by Supplier, Supplier shall reimburse or credit, as applicable, Buyer in a timely manner, for any and all Sales Taxes or withholding taxes erroneously paid by Buyer.

 

24.   FORCE MAJEURE: No Party shall be liable or responsible for failure to provide good or services or take delivery of such goods or services caused by acts of God, fire, explosion, flood, war, labor strikes, or any other circumstances of like or different character beyond a Party’s reasonable control (each a "Force Majeure Event").

 

In the event of any failure, interruption or delay in the performance of the Parties’ obligations (or of any of them) resulting from any Force Majeure Event (the “Affected Party”), the Affected Party shall promptly notify the other party in writing specifying:

 

a.      The nature of the Force Majeure Event;

b.      The anticipated delay in the performance of obligations; and

c.      The action proposed to minimise the impact of the Force Majeure Event,

 

If the Force Majeure Event continues for thirty (30) calendar days either Party may terminate these Terms and Conditions at five (5) calendar days’ notice.

 

25.   NOTICES: All notices to be given hereunder shall be in writing and shall be deemed to be given when mailed by certified, registered mail, personal delivery, or email to Buyer to the address listed at https://www.mycwt.com/legal/notices/ and if to Supplier to the address of the Supplier specified in these Terms and Conditions unless Supplier shall specify to Buyer a different address for the giving of such notice.

 

Any such notice shall be deemed to have been duly given 72 hours after the time it was mailed, except as follows: (a) if served by hand it shall have immediate effect; (b) if served by e-mail, the notice shall be deemed to have been duly served 24 hours after the time it was e-mailed. Service by e-mail shall only be effective if served to the e-mail address set out in the Order or above. All notices served by e-mail shall be followed up with an original in the post.   Notice of a change of address shall be effective only when done in accordance with this Section.

 

26.   ASSIGNMENT: Supplier may not assign its rights or subcontract its duties without the Buyer's written consent. Any unauthorized assignment is void. Buyer may assign its rights to an Affiliates without prior written consent from Supplier.

 

27.   WAIVER: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not:

a.      waive that or any other right or remedy; or

b.      prevent or restrict the further exercise of that or any other right or remedy.

 

28.   SEVERABILITY: If any provision of these Terms and Conditions is held invalid or unenforceable, either in its entirety or by virtue of its scope or application to given circumstances, such provision will be deemed modified to the extent necessary to render the same valid or not applicable to given circumstances or excised from these Terms and Conditions, as the situation may require, and these Terms and Conditions will be construed and enforced as if such provision had been included herein as so modified in scope or application or had not been included herein, as the case may be.

 

29.   SURVIVAL OF OBLIGATIONS: Any obligations and duties which by their nature extend beyond the expiration or termination of these Terms and Conditions shall survive the expiration or termination of these Terms and Conditions.

 

30.   THIRD PARTY RIGHTS: With the exception of Buyer’s Affiliates, no one, other than a Party to these Terms and Conditions, shall have any right to enforce any of its terms.

 

31.   ENTIRE AGREEMENT: These Terms and Conditions may not be varied, modified, altered, or amended except (i) by a writing signed by both Buyer and Supplier or (ii) by a purchase order or change order issued by Buyer and accepted by Supplier. The terms and conditions set out herein apply to these Terms and Conditions between the Buyer and the Supplier to the exclusion of any other terms that the Supplier seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.  For the avoidance of doubt, any Supplier pre-printed terms and conditions produced, signed, or stamped by either the Supplier or the client and for whatever purpose during the currency of these Terms and Conditions are hereby disallowed.