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Terms and Conditions - Suppliers

 

TERMS AND CONDITIONS

 

1.            SCOPE OF AGREEMENT

 

Subject to Seller’s compliance with the terms and conditions in this Agreement, Buyer hereby appoints Seller as a non-exclusive supplier of the Products. Seller hereby accepts such appointment upon the terms and conditions of this Agreement.  Each Party acknowledges and agrees that during the Initial Term or Renewal Term nothing in this Agreement shall create any form of exclusive relationship between the Parties.  In addition, Buyer may market, sell, distribute, manufacture, or develop products that are competitive with the Products.

 

2.           ORDER/DELIVERY

 

The products covered by this Agreement and their respective lead times, prices, and countries of origin are identified in Exhibit A (“Products”). Any amendment to Exhibit A must be by written agreement of the Parties.

 

Buyer may place an order (“Order”) by means of mail, facsimile, e-mail, web portal, or EDI communication to Seller. Within two (2) business days after the receipt of an Order, Seller shall confirm and accept the Order in writing or by performance.  Buyer’s Order shall be deemed accepted by Seller and Seller shall be bound by such Order unless Buyer has received notice of non-acceptance of the Order within two (2) business days after Seller’s receipt of the Order. Buyer expressly objects to and rejects any additional or different terms and conditions. Any term or condition included in an Order, or in any acknowledgement, invoice, or similar document issued by either Party that conflicts with the terms and conditions of this Agreement will not apply to or govern the transaction resulting from the Order, unless both Parties agree in writing to that particular conflicting term or condition, in which event, the agreed term or condition will apply only with respect to that particular Order.  This Agreement is not an Order for the purchase of Products. Buyer is not obligated to place any Orders for any quantity of Products.  Each Order forms part of and is subject to the terms and conditions of this Agreement.

 

For any Order placed during the Initial Term (or any subsequent Renewal Term) of this Agreement, Seller shall deliver the Products on the date set forth in Buyer’s Order, unless otherwise provided in Exhibit A.  

 

 

  1. PRICE/PAYMENT TERMS

 

Agreed prices and currency are set forth in Exhibit A except that if Seller offers a better price to a third party for similar quantities of similar products, the price for Products will be the price offered to the third party. Seller shall promptly inform Buyer of any lower pricing levels for same or comparable Products, and the Parties shall promptly make the appropriate price adjustment.  Seller’s invoices shall conform to Buyer’s standard invoicing requirements, which shall be communicated to Seller.

Buyer may deduct any amount owed by Seller to Buyer as a setoff against any amount due to Seller or its Affiliates under this Agreement or any other agreement. Any applicable fees and taxes (e.g., license fees, VAT, GST, business tax, consumption tax, stamp duty, customs duty) levied against Seller are the sole responsibility of Seller.

 

 

  1. PRODUCT DISCONTINUATION

 

Seller shall provide after-sales services, consumables, spare parts, and replacement parts for Products during the Initial Term (and any subsequent Renewal Term), and for ten (10) years after the termination of this Agreement or ten (10) years after discontinuance of the Product, whichever occurs earlier.

 

In the event that Seller decides to discontinue production of any Product or any Seller-manufactured parts for Products, Seller shall provide six (6) months’ advance notice of same to Buyer

 

In the event of termination of this Agreement or Product discontinuation, Buyer shall have the right, up to thirty (30) days from the date of termination/Product discontinuation, to place a last time buy Order with Seller for Products in quantities not more than two (2) times the purchase volumes Buyer made in the previous consecutive twelve (12) month period, with a delivery schedule generally consistent with the previously agreed upon lead times, delivery dates, and other delivery obligations.

 

 

  1. WARRANTIES

 

 “Specifications” means specifications for the Products agreed to by the Parties, samples, all written or electronic Product descriptions, formulations, diagrams, requirements and other materials relating to the Products that are communicated by Buyer to Seller, other representations, depictions, samples, or models of the Products, and any written specifications attached hereto. Warranties under this Agreement are in addition to any warranty or service guarantee offered by Seller or provided or implied under applicable law.. Products used to correct a nonconformity shall be warranted as provided in this Agreement.

 

 

6.           TERM & TERMINATION

 

The initial term of this Agreement is one (1) year (“Initial Term”), commencing on the Effective Date. After the Initial Term, this Agreement will automatically renew on the anniversary of the Effective Date on the same terms and conditions (unless otherwise agreed in writing by the Parties) for additional terms of one (1) year each (each a “Renewal Term”), unless written notice of intent not to renew is given by either Party in writing at least six (6) months before the termination of the Initial Term or any Renewal Term.

 

Either Party may terminate this Agreement immediately by written notice if the other Party materially breaches this Agreement and where remediable fails to cure that breach within thirty (30) days after receiving written notice of the breach from the non-breaching Party. In addition, this Agreement shall terminate without notice in the event if (a) the Seller takes any action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a  solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction); (b) the Supplier suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; (c) or the Seller's financial position deteriorates to such an extent that in the buyer's opinion the Seller's capability to adequately fulfil its obligations under this Agreement or any Order has been placed in jeopardy.

 

Buyer may terminate this Agreement at any time, with or without cause, by giving a written notice of three (3) months.

 

Upon termination or expiration of the Agreement for whatever reason: (i) the Seller shall have no claim against Buyer for compensation for loss of goodwill or any similar loss, (ii) Seller will not be entitled to any additional remuneration, or reimbursement of any expenses based on the expiration or termination of this Agreement, and (iii) unless retention is required by law, both Parties will delete all Confidential Information of the other Party that may reside on any computer system owned or under its control and return or destroy all Confidential Information, including all documents that contain any portion of the Confidential Information.

 

The terms and conditions of this Agreement that by their sense and context are intended to survive termination hereof shall so survive.. 

 

 

 

7.           NOTICE

 

 

Any notices and other communications provided for hereunder shall be in writing (including e-mail, fax) and shall become effective (i) when manually delivered on a business day during normal business hours at the place of receipt to the Party to be given such notice; (ii) on the seventh business day following the day when deposited, if mailed by certified or registered mail with return receipt requested and postage thereon fully prepaid;  (iii) on the second business day following the day when deposited, if sent by overnight courier, fully prepaid; or (iv) if sent by e-mail (or fax), at 9am on the next business day in the place of receipt and provided that if any such form of communication produces an automated response reporting a failure to deliver, delayed delivery to the intended recipient or “out of office” reply, such notice shall be deemed not to have been received by the addressee.

 

 

The addresses for such notice shall be:

 

              Buyer:                                                                                          Seller:

 

              JELD-WEN UK Ltd                                                                                                                   

              Retford Road                                                                                                                         

              Woodhouse Mill                                                                                                                   

              Sheffield                                                                                                                                  

              S13 9WH                                                                                                                                

              Attention:[             ]                                                                      Attention:                             

 

              And

 

              JELD-WEN, Inc.                                                                                                                      

              2645 Silver Crescent Drive                                                                                                    

              Charlotte, NC 28273                                                                                                              

              Attention: Law Department

 

 

 

 

8.           AFFILIATES

 

Affiliates of Buyer may purchase Products under the terms of this Agreement and for the avoidance of doubt any Orders made by an Affiliate shall be at the same price as any Orders made by the Buyer for the same Products. “Affiliates” means any legal entity or organization that (1) Buyer owns or controls, (2) owns or controls Buyer, or (3) is under common control with Buyer. For the purpose of this provision, “control” means having more than 50% of the shares or other equity interest with voting rights in Buyer or any legal entity or organization. If Buyer’s Affiliate purchases Products under this Agreement, the Affiliate that places the order will have all of Buyer’s rights under this Agreement and will be solely responsible for Buyer’s obligations related to the Products purchased by that Affiliate.

 

 

9.           COUNTERPARTS

This Agreement may be executed in one or more counterparts, all of which taken together will constitute one instrument. Any signature page delivered by facsimile or e-mail shall be binding to the same extent as an original signature page.

 

10.         ENTIRE AGREEMENT

 

This Agreement together with the terms and conditions found at the following link: https://www.jeld-wen.co.uk/about/terms-and-conditions-suppliers, which are expressly incorporated by reference, contains the entire agreement between Buyer and Seller with respect to Products and supersedes all other written or oral agreements relating to Products. Any additional terms set forth on any other document or form of Seller, including Order acknowledgements and invoices, are material alterations of this Agreement and are expressly rejected unless signed by both Parties. The terms of this Agreement can only be modified by a writing signed by the Parties. A waiver by a Party of any breach or default by the other Party is not a waiver of any other breach or default, and no course of dealings between the Parties will modify this Agreement.

 

 

11.         SEVERABILITY

 

If any provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction for any reason, the invalidity, illegality, or unenforceability of that provision will not affect any other provision of this Agreement, but the invalid provision will be substituted with a valid provision that most closely approximates the intent and the economic effect of the invalid provision and that would be enforceable to the maximum extent permitted in the applicable jurisdiction.

 

 

12.         AUTHORITY

 

Seller represents and warrants it has the right to enter into and perform its obligations under this Agreement and entering this Agreement will not breach any obligation Seller has to any third party.

 

 

 

 

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AGREED:

 

BUYER

SELLER

By:                                                                         

By:                                                                              

Name:                                                                         

Name:                                                                              

Title:                                                                         

Title:                                                                              

Date:                                                                         

Date:                                                                              

 

Exhibit A

 

Last Updated: [DATE]

 

Terms and Conditions

 

  1. Application. The terms of this Exhibit A shall apply to any Orders for Products issued by Buyer or an Affiliate of Buyer. This Exhibit A may only be amended by signed agreement of the Parties.

 

  1. Pricing; Cost Improvements. Prices shown above shall remain firm for a period of [INSERT] calendar days from the date on which such price was last fixed. The Parties shall consider requests for price adjustments in good faith. Any such request shall specifically reference the rationale for such requested adjustment to prices, including any changes to key inputs/officially recognized indexes. In no event may Seller increase prices unless Seller provides Buyer with at least ninety (90) days’ advance notice. Any adjustment to Prices must be agreed by the Parties in writing. Seller shall proactively initiate activities to ensure continuous global competitiveness.

 

  1. Recordkeeping; Audit. During the term of this Agreement and for three (3) years following termination for any reason, Seller agrees to keep true, accurate, and complete records for the purposes of proving the Seller’s costs for all transactions under this Agreement for the immediately preceding three (3) year period. Buyer may, directly or indirectly, audit and inspect Seller’s or Seller’s subcontractors’ records to confirm Seller’s compliance with this Agreement. Buyer shall bear the costs of such audit, unless such audit identifies overcharges or discovers fraud or breach of this Agreement, in which case Seller shall reimburse Buyer for the costs of such audit.

 

  1. Proprietary Materials. The Seller acknowledges that any proprietary materials made available to the Seller by the Buyer for use in connection with supply of the Product shall remain the exclusive property of the Buyer. Such proprietary materials include, but are not limited to, drawings, prototypes, samples, tools, production equipment, and models. If the Buyer has certain requirements regarding the Seller’s use, storage or handling of its proprietary material, the Buyer will specify this to Seller.

 

[Exhibit includes the attached table]

 

AGREED:

 

BUYER

SELLER

By:                                                                         

By:                                                                              

Name:                                                                         

Name:                                                                              

Title:                                                                         

Title:                                                                              

Date:                                                                         

Date:                                                                              

 

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