Nedshield Standard Business Terms

Nedshield Standard Terms and Conditions of Purchase

Revision date: 25/01/2020

.

VERSION : 2020(1)

1.          TERMS OF AGREEMENT

The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the NEDSHIELD company (“NEDSHIELD”) and the supplier (the “Supplier”) identified in the Purchase Order. NEDSHIELD’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on NEDSHIELD’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions.

Notwithstanding the foregoing, if a master agreement covering procurement of the Products or Work described in the Purchase Order exists between Supplier and NEDSHIELD, the terms of such master agreement shall prevail over any inconsistent terms herein.

2.          DEFINITIONS

2.1        “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work “SOW” ) to be delivered on or before the Delivery Date.

2.2        “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.

2.3        “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.

2.4        “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;

(ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).

2.5        “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or NEDSHIELD created before the date of this Purchase Order or outside the scope of this Purchase Order.

2.6        “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.

2.7        “Services” means the services that Supplier is to perform for NEDSHIELD specified in the Purchase Order.

 2.8       “Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Work that Supplier will perform for NEDSHIELD.

2.9        “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier.

2.10      “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.

2.11      “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.

2.12      “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.

3.          DELIVERY

3.1        Time is of the essence in Supplier’s performance of its obligations under Section 3 of the Purchase Order. Supplier will immediately notify NEDSHIELD if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. NEDSHIELD’s acceptance of Supplier’s notice will not constitute NEDSHIELD’s waiver of any of Supplier’s obligations.

3.2        If Supplier delivers Work after the Delivery Date, NEDSHIELD may reject such Work.

3.3        NEDSHIELD will hold any Work rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges NEDSHIELD incurs on Supplier’s behalf. NEDSHIELD may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which NEDSHIELD does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.

3.4        Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications NEDSHIELD may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Further, Supplier will ensure that all deliveries are executed in accordance with the prescribed security measures to protect  the identity, origin and product content, in such case that these are not explicitly provided to Supplier, the Supplier  shall ensure that all reasonable measures shall be taken to assure the aforegoing as HIGHLY CONFIDENTIAL.

3.5        Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the NEDSHIELD part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.

3.6        Unless NEDSHIELD expressly instructs otherwise, Supplier will deliver all Work to NEDSHIELD’s designated location at the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to NEDSHIELD until acceptance in accordance with Section 6.

4.          PRICE AND PAYMENT

4.1        Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at NEDSHIELD’s request, break-out from the price all such taxes and other charges, in its invoices.  Supplier shall use its best efforts to assist NEDSHIELD in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.

 4.2       NEDSHIELD will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of NEDSHIELD’s acceptance of all of the Work; or (iii) NEDSHIELD’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the Work to the requirements. Payment will be in the currency of the country in which the NEDSHIELD entity or affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then NEDSHIELD will determine the local currency equivalent of the price as of date of payment. NEDSHIELD may, at any time, set-off any amounts Supplier owes NEDSHIELD against any amounts NEDSHIELD owes to Supplier or any of its affiliated companies.

5.          OWNERSHIP AND LICENSE

5.1        Unless otherwise specified in a SOW and except as provided in Section 5.2, NEDSHIELD is the sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to NEDSHIELD all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.

5.2        Unless otherwise specified in a SOW, each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier hereby grants NEDSHIELD a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier’s Preexisting Materials in the Deliverables to the extent necessary for NEDSHIELD’s exercise and exploitation of its rights in the Deliverables.

5.3        Unless otherwise specified in an SOW, Supplier will obtain and assign to NEDSHIELD a non- exclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to NEDSHIELD upon NEDSHIELD’s request.

6.          INSPECTION AND ACCEPTANCE

NEDSHIELD may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At NEDSHIELD’s option, NEDSHIELD may (i) return the non- conforming Work to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), NEDSHIELD may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount NEDSHIELD reasonably determines to represent the diminished value of the non-conforming Work. NEDSHIELD’s payment to Supplier for Work prior to NEDSHIELD’s timely rejection of such Work as non- conforming will not be deemed as acceptance by NEDSHIELD.

7.          CHANGES

7.1       As used in this Section 7, “Change” means a change NEDSHIELD directs or causes within the general scope of this Agreement, the applicable SOW or both.

7.2        NEDSHIELD, by written order (“Change Order”), may make Changes in accordance with this Section 7.

7.3       If Supplier asserts that NEDSHIELD has directed or caused a Change to the cost of or time for performance for which NEDSHIELD has not issued a Change Order, Supplier will promptly notify NEDSHIELD in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change; (ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work; and (iii) a date no less than 30 days from the date of notice by which NEDSHIELD must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged.  NEDSHIELD will evaluate Supplier’s notice of Change in good faith, and if NEDSHIELD agrees that it has made a constructive change, NEDSHIELD will issue a Change Order to Supplier.

7.4        Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 10  days  of  receiving  a  Change  Order,  submit  a  request  for  equitable  adjustment  specifying  the adjustment in the price or time for performance resulting from the Change.

7.5        The  parties  shall  negotiate  an  amendment  to  the  applicable  SOW  to  incorporate  a Change Order providing for an equitable adjustment to the price, time for performance, or both.

7.6       Supplier will proceed with the Changed Work as directed, notwithstanding that the parties have  not  negotiated  the  amendment  to  this  Agreement  or  the  applicable  SOW  to  incorporate  the equitable adjustment.

7.7        All changes to the initial SOW or Purchase Order shall be affected by Supplier under the same conditions (including warrantees/guarantees for any delivered products and services)  as agreed in the initial Purchase Order terms and conditions unless expressly agreed otherwise in writing.

8.          REPRESENTATIONS AND WARRANTIES

8.1        Supplier represents and warrants that:

(i)          it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;

(ii)         it has the right and unrestricted ability to assign the Work to NEDSHIELD including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors;

(iii)        the Work, and NEDSHIELD’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;

(iv)        Supplier will not disclose to NEDSHIELD, bring onto NEDSHIELD’s premises, or induce NEDSHIELD to use any confidential or proprietary information that belongs to anyone other than NEDSHIELD or Supplier which is not covered by a non-disclosure agreement between NEDSHIELD and Supplier;

(v)         Software supplied by Supplier does not contain any Harmful Code;

(vi)        Supplier’s Work conforms to NEDSHIELD’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use;

(vii)       in performing its obligations under this Purchase Order it will apply the Nedshield Code of Ethics;

(viii)      except to the extent Supplier is providing: (A)  Products only; (B) Services from a Supplier location; or (C) Services in relation to marketing, educational, or a sales related event at a third party site, they have read and comply with the applicable Supplier Environmental Health and Safety Requirements;

(ix)        it will not use or disclose any information that may identify an individual (“Personal Data”) that is processed for or on behalf of NEDSHIELD, except to the extent necessary to perform under this Purchase Order;

(x)         only to the extent that Supplier actually processes Personal Data it will:

(A) implement and maintain appropriate technical and organizational measures and other protections for Personal Data – as per the European GDPR regulations and standards (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier’s premises unless each case (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage), (B) report to NEDSHIELD any breaches of security of Personal Data immediately after discovery (“Security Incident”), (C) cooperate fully with NEDSHIELD in investigating any Security Incidents , (D) cooperate fully with NEDSHIELD’s requests for access to, correction of, and destruction of Personal Data in Supplier’s possession, (E) comply with all instructions or other requirements provided or issued by NEDSHIELD from time to time relating to Personal Data, and (F) permit NEDSHIELD and/or its duly authorized representatives, on reasonable prior notice, to inspect and audit Supplier’s business premises and computer systems to enable NEDSHIELD to verify that Supplier is in full compliance with its processing obligations under this Purchase Order;

(xi)        it will not transfer Personal Data across any country border unless it is (a) strictly unavoidable for the proper performance under this Purchase Order, and (b) notified to NEDSHIELD in writing prior to any such transfer. Upon NEDSHIELD’s request,

Supplier shall enter into such other arrangements with NEDSHIELD as NEDSHIELD considers appropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’s transfers are lawful.

(xii)       it will not provide NEDSHIELD with Personal Data of any third party or its own employees. Notwithstanding the foregoing, if Supplier does provide NEDSHIELD with any Personal Data, Supplier represents and warrants that it has obtained the necessary consent to provide that Personal Data to NEDSHIELD and to allow NEDSHIELD to use, disclose, and transmit such Personal Data on a worldwide basis among NEDSHIELD and its affiliates in connection with this Purchase Order; and

(xiii)      no Products contain or include components which:

• are subject to: ITAR (International Traffic in Arms Regulations) and the EAR (Export Administration Regulations)

and,  or which contravene, or are not compliant with :

• Council Decision (CFSP) 2019/1560 of 16 September 2019 amending Common Position 2008/944/CFSP
• EU Council Regulation 428/2009
• European Network and Information Systems (NIS) Security Directive

8.2        NEDSHIELD warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.

8.3        TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9.          ASSIGNMENT AND SUBCONTRACTING

9.1        Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without NEDSHIELD’s prior written consent, which NEDSHIELD will not unreasonably withhold. NEDSHIELD may, at its option, void any attempted assignment or delegation undertaken without NEDSHIELD’s prior written consent.

9.2        Supplier may not subcontract any of its rights or obligations under the Purchase Order without NEDSHIELD’s prior written consent. If NEDSHIELD consents to the use of a Supplier`s Subcontractor, Supplier will:

(i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify NEDSHIELD for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by NEDSHIELD or any third party and caused by the acts and omissions of Supplier’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, NEDSHIELD will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the  Subcontractor. Supplier will defend, indemnify and hold NEDSHIELD harmless for all damages and costs of any kind, without limitation, incurred by NEDSHIELD and caused by Supplier’s failure to pay a Subcontractor.

9.3        To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.

10. TERM AND TERMINATION

 10.1     The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Work is completed and accepted.

10.2      NEDSHIELD may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform NEDSHIELD of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to NEDSHIELD whatever Work then exists. NEDSHIELD will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that NEDSHIELD will not be obligated to pay any more than the payment that would have become due had Supplier completed and NEDSHIELD had accepted the Work. NEDSHIELD will have no further payment obligation in connection with any termination.

10.3      Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.

10.4      NEDSHIELD may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.

10.5      Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. NEDSHIELD shall have no further payment obligation to Supplier under any terminated SOW if NEDSHIELD terminates the SOW under this Section 10.5.

10.6      Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.

11.  CONFIDENTIAL INFORMATION AND PUBLICITY

 11.1     If NEDSHIELD and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.

11.2      The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA.

11.3      Supplier shall obtain NEDSHIELD’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to NEDSHIELD.

 12. INDEMNIFICATION

 12.1  As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.

12.2      Supplier shall defend, indemnify and hold NEDSHIELD harmless from and against any and all

Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.

12.3      NEDSHIELD shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of NEDSHIELD’s products or services in connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by NEDSHIELD; or (iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’s adherence to NEDSHIELD’s written instructions.

12.4      Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).

12.5      The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.

12.6      If a third party enjoins or interferes with NEDSHIELD’s use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit NEDSHIELD to continue to use the Work; (ii) replace or modify the Work as necessary to permit NEDSHIELD to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to NEDSHIELD the amount paid for any Work for which a third party enjoins or interferes with NEDSHIELD’s use of the Work.

12.7      Nothing in this Section shall limit any other remedy of the parties.

 13. LIABILITY

13.1      NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, NEDSHIELD WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT NEDSHIELD PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.

13.2      IN NO EVENT WILL NEDSHIELD BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT NEDSHIELD WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

13.3      THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY’S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

14. INSURANCE

Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect NEDSHIELD in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities  of  an  employer  to  its  employees  for  injuries  and  disease  suffered  in  connection  with employment.  Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.

15. COMPLIANCE WITH LAWS

 Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render NEDSHIELD liable for a violation of any applicable anti-bribery legislation (including without limitation, the:

• U.S. Foreign Corrupt Practices Act and
• the UK Bribery Act (2010),
• and EU – Civil Law Convention on Corruption (ETS No. 174)

which prohibits the offering, giving or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist it them or NEDSHIELD in retaining or obtaining business or in performing the Work. Supplier’s failure to comply with this provision shall constitute a material breach of this Purchase Order.

 16. GOVERNING LAW

The validity, interpretation, and performance of this Purchase Order shall be controlled by and construed under the laws of the Swiss Confederation. The Switzerland Courts shall have exclusive jurisdiction over any claim arising under this Purchase Order. Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights. The parties specifically disclaim the application of the UN Convention on Contracts for the International Sale of Goods to the interpretation or enforcement of this Purchase Order.

17.GENERAL

 17.1     Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.

17.2      If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:

17.2.1  A conflict between the terms of the Purchase Order and those set forth in an exhibit /(or any hyperlink provided) will be resolved in favor of the Purchase Order.

17.2.2  A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.

17.2.3  A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.

17.3      If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.

17.4     A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.

---

PLEASE CONTACT : info@nedshield.com for PDF versions

---

Standard Purchase Order Terms and Conditions for the supply of Materials, Goods & Services to Nedshield

Revision date: 22/02/2020

VERSION : 2020(1) PURCHASE ORDER TERMS

PLEASE READ CAREFULLY

THIS PURCHASE ORDER (AS DEFINED BELOW) CONSTITUTES THE COMPLETE AND EXCLUSIVE CONTRACT BETWEEN [NEDSHIELD SWITZERLAND AG] (“NS”) AND YOU WITH RESPECT TO THE PRODUCTS, SERVICES AND DELIVERABLES, UNLESS THIS PURCHASE ORDER IS BEING ISSUED UNDER A PURCHASE AGREEMENT (AS DEFINED BELOW). THIS PURCHASE ORDER MAY BE MODIFIED ONLY IN WRITING SIGNED BY NS AND YOU. NS HEREBY OBJECTS TO AND REJECTS ANY INCONSISTENT, ADDITIONAL OR DIFFERENT TERMS, INCLUDING, BUT NOT LIMITED TO, TERMS CONTAINED IN ANY VERBAL OR WRITTEN OFFERS, PROPOSALS, QUOTATIONS, INVOICES, ORDER ACKNOWLEDGMENTS WARRANTY CARDS, AND IN ANY OTHER STATEMENTS PROVIDED BY YOU. NO COURSE OF DEALING OR USANS OF TRADE SHALL BE PART OF THE CONTRACT BETWEEN NS AND YOU.

YOU SHALL BE DEEMED TO HAVE ACCEPTED THIS PURCHASE ORDER IF YOU (I) SEND NS A WRITTEN ACKNOWLEDGMENT; (II) DELIVER ANY PRODUCT OR SERVICE ORDERED (INCLUDING ANY DELIVERABLE); OR (III) COMMENCE ANY WORK ON ANY PRODUCT OR SERVICE SET FORTH IN THIS PURCHASE ORDER, INCLUDING ANY DELIVERABLE. UPON ACCEPTANCE, YOU AGREE TO BE BOUND BY AND TO COMPLY WITH ALL TERMS SET FORTH IN THIS PURCHASE ORDER. NS MAY REVOKE ITS OFFER AS CONTAINED IN THIS PURCHASE ORDER AT ANY TIME BEFORE YOUR ACCEPTANCE.

Notwithstanding anything herein to the contrary, this Purchase Order shall take precedence over any alternative terms in any other document connected with this transaction, unless such alternative terms are contained in a separately written purchase agreement previously signed by the Parties (“Purchase Agreement”) that pertains to the Products, Services and/or Deliverables described in this Purchase Order; and the Parties have expressly agreed that the Purchase Agreement’s terms override these PO Terms (as defined below) in the event of a conflict.

These NS Purchase Order Terms (or “PO Terms”) , the terms contained on the face of this purchase order, and any NS provided attachments, samples, drawings or specifications referred to herein , collectively constitute this “Purchase Order” or “PO”. This Purchase Order constitutes NS’s offer to purchase from you those materials, products and equipment (“Products”), as well as those services (“Services”), set forth in this Purchase Order. This Purchase Order also includes all Deliverables you provide NS. “Deliverables” means all items in tangible and intangible form, including inventions, discoveries, works of authorship, programs, derivative works, source code, object code, ideas, techniques, methods, processes, information, data, documentation and materials, that you and/or Your Personnel create, prepare or deliver to NS, or otherwise produce, conceive, make, propose or develop as a result of this Purchase Order in the context of rendering the Services. “Your Personnel” means all persons and entities providing any Products, Services and/or Deliverables, including without limitation your employees, agents, contractors, subcontractors and suppliers, as well as anyone directly or indirectly employed or retained by any of them. “NS Affiliate” means any entity (including but not limited to, joint ventures, corporations, limited liability companies, partnerships, limited partnerships, business trusts or other entities, subsidiaries, businesses, operating divisions, units or P&L’s thereof) that is directly or indirectly in control of, controlled by, or under common control with NS whether now existing, or subsequently created or acquired. NS and you may each be referred to herein as a “Party” or together as the “Parties”. All other capitalized terms used in these PO Terms shall have the meanings ascribed to them as set forth herein.

1. TERMINATION.

1.1 In the event a Party breaches any material obligations hereunder, the non-breaching Party may terminate this PO if the breach has not been cured within thirty (30) calendar days of receipt of written notice of such breach by the non-breaching Party or within such additional cure period as the non-breaching Party may authorize in writing (provided, however, that the non-breaching Party may terminate immediately upon the breaching Party’s receipt of written notice from the non-breaching Party to the extent the breach is incapable of cure).  1.2 NS may terminate this PO without cause with thirty (30) days prior written notice to you. Notwithstanding anything to the contrary, NS’s liability and your exclusive remedy for such termination by NS is limited to NS’s payment for Products, Services and Deliverables provided and accepted in writing by NS prior to the effective date of said termination.

1.3 Either Party may terminate this PO effective immediately, if the other Party (i) makes a general assignment for the benefit of its creditors, (ii) is subject to the appointment of a trustee or receiver or similar officer of the court for any of its property, or (iii) files or have filed against it a petition under the bankruptcy or insolvency laws. NS may terminate this PO effectively immediate if (i) you suffer a material adverse change in its financial conditions that affects your ability to fulfill any of its obligations under this PO, or (ii) there is a change of control with respect to you. A “change of control” means (a) the sale of all or substantially all of your assets; (b) any merger, consolidation or acquisition involving you with, by or into another corporation, entity or person; or (c) any change in the ownership of more than fifty percent (50%) of the ownership interest, including, but not limited to, the voting capital stock, in you in one or more transactions.

1.4 NS also reserves the right to modify or suspend shipments of all or any part of Products, Services and/or Deliverables without cause or breach on your part and without incurring any liability to NS.

1.5 Termination shall not prejudice either Party or affect either Party’s right to require performance of any obligation due at the time of termination. It is acknowledged by both Parties that the rights and obligations of the Parties set forth herein which by their nature would continue beyond the termination or expiration of this PO, including, without limitation, the first three paragraphs of these PO Terms, as well as Sections1, 2, 3, 4, 5, 6, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 27, 28, 29, 30, 31, 32, and 33 hereof, shall survive any termination or expiration.

2. REPRESENTATIONS AND WARRANTIES.

2.1 You represent and warrant that you have all power, authority, rights and licenses, to provide the Products, Services and Deliverables.

2.2 You: (a) warrant that the Services rendered under this PO shall be provided in a good and workmanlike manner executed in a competent and professional manner in accordance with the highest standards and best practices of your industry; and (b) represent and warrant that you have or shall promptly obtain appropriate agreements with Your Personnel sufficient to enable full compliance with all the provisions of this PO.

2.3 You represent and warrant that NS’s exercise of the rights and licenses provided herein shall not constitute an infringement or violation of any patent, copyright, trade secret or other proprietary rights of any third party.

2.4 You warrant that you shall use all commercially reasonable efforts to fulfill your obligations under this PO, and that time is of the essence.

2.5 You warrant that all Products, Deliverables, and Services shall be provided to NS free from any claims of any nature, including, without limitation, defects in title, and free of all liens, claims, or encumbrances.

2.6 You represent and warrant that the Products and Deliverables shall conform in all respects with its documentation, and all functional and technical specifications, as well as such other requirements set forth in this PO or otherwise approved or adopted by NS in writing.

2.7 You warrant that you shall comply with all applicable laws, legislation, rules, regulations, codes and standards of governmental agencies or authorities having jurisdiction over the activities relating to this PO.

2.8 You represent and warrant that the Products and Deliverables are free from defects design, material, and workmanship, whether latent or patent.  2.9 You hereby extend to NS any and all warranties received from your sub-suppliers and agree to enforce such warranties on NS’s behalf. All of your warranties shall run collectively and separately to NS and NS Affiliates, including to their respective successors, and assigns.

2.10 You represent and warrant that the Products are new upon shipment and merchantable, and not used, rebuilt or made of refurbished material.

2.11 You represent and warrant that the Products are safe and fit for the particular purpose for which they are intended, are non-toxic, and present no abnormal hazards to persons or their environment.

2.12 You represent and warrant that no Product or Deliverable, in whole or in part, (i) is licensed pursuant to any open source software license; (ii) incorporates, integrates with, links to or is based on any open source software; and (iii) is subject to, any open source software, freeware, or free use software license terms, including, without limitation, the GNU Public License, the GNU Lesser General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License, or any other license that requires in any instance that other software, including, without limitation, the Deliverables, distributed with such software code be (a) disclosed or distributed in source code form; (b) licensed for purposes of making derivative works; and/or (c) redistributed at no charge. Open source software also includes, without limitation, any software subject to an open source license, including, but not limited to, any license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation) or any similar license.

2.13 You warrant that the Products and Deliverables: (a) do not contain any restrictive devices such as any key, node lock, time-out, time bomb, or other function, whether implemented by electronic, mechanical, or other means, which may restrict or otherwise impair the operation or use of the Deliverables or any material embodying or comprising Deliverables; and (b) shall be free of viruses and other harmful code (including, without limitation, time-out features) which may interfere with the use of the Deliverable(s) regardless of whether you or Your Personnel purposefully placed such code in the Deliverable(s). In addition to exercising any of NS’s other rights and remedies under this PO or otherwise at law or in equity, you shall provide NS, free of charge, with any and all new versions, upgrades, updates, releases, maintenance releases, and error or bug fixes of the Deliverables (collectively, “Revised Code”) which prevents a breach of any of the warranties provided under this PO or corrects a breach of such warranties. Revised Code contained in Deliverables constitutes Deliverables for purposes of this PO.

2.14 You represent and warrant that no third party software shall be included in the Deliverables without first informing NS in writing of the particulars thereof and obtaining NS’s express prior written approval thereof.

2.15 You represent and warrant that no knowledge or information disclosed to NS by you or any of Your Personnel that in any way relates to Products, Services and/or Deliverables, shall, unless otherwise specifically agreed in advance and in writing by NS, be deemed confidential or proprietary information to your or Your Personnel, and NS shall acquire all such knowledge and information free from any restrictions (subject only to Product copyright and patent rights), as part of the consideration for this PO.

2.16 The warranties set forth in this Section 2: (i) survive the inspection, acceptance, and use of the Products and Deliverables by NS; and (ii) are in addition to any warranties, rights, and/or remedies to which NS may otherwise agree to in writing or which are provided at law or in equity. The term of those warranties set forth in Sections 2.2(a), 2.6, and 2.8 shall be for a period of twenty-four (24) months from NS’s written acceptance of the applicable Product, Service or Deliverable. All of your other warranties set forth in these PO Terms survive in perpetuity.

3. INDEMNIFICATION.

3.1 You shall to the fullest extent permitted by applicable law, defend, indemnify, release and hold NS, NS Affiliates and its and their respective directors, officers, employees, agents, representatives, successors and assigns (each an “Indemnitee”) harmless from and against any and all suits, actions, or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, fines, penalties, damages, costs, expenses, including attorneys’ fees and expenses, or liabilities (including, without limitation, claims for personal injury, death, or property damage) arising from any act or omission of you or Your Personnel, except to the extent attributable to the sole and direct gross negligence of Indemnitee. In claims against an Indemnitee by an employee of yours or Your Personnel or anyone for whose acts they may be liable, the indemnification obligation set forth in this Section 3 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for you or any of Your Personnel under any applicable workers’ compensation, disability or other employee benefit or act. You agree to include a clause substantially similar to the preceding clause in all subcontracts it enters into related to its fulfillment of this PO.

3.2 You shall indemnify, defend and hold each Indemnitee harmless from all costs and expenses related to any suit, claim or proceeding brought against any Indemnitee or their respective customers based on a claim that any article or apparatus, or any part thereof constituting goods or services (including, without limitation, any Product, Service and/or Deliverable) furnished under this PO, as well as any device or process necessarily resulting from the use thereof, constitutes an infringement of any patent, copyright, trademark, trade secret or other intellectual property right of any third party. NS shall notify you promptly of any such suit, claim or proceeding and give you authority, information, and assistance (at your expense) for the defense of same and you shall pay all damages and costs awarded therein. Notwithstanding the foregoing, any settlement of such suit, claim or proceeding shall be subject to NS’s prior written consent, such consent not to be unreasonably withheld. If use of said article, apparatus, part, device or process (including, without limitation, any Product, Service and/or Deliverable) is enjoined, you shall, at its own expense and at its option, either procure for NS the right to continue using said article or apparatus, part, process or device, or replace the same with a non-infringing equivalent.

3.3 Any Indemnitee desiring to make a claim for indemnification hereunder shall promptly provide you notice of such claim which Indemnitee believes falls within the scope of this Section 3; provided, however, that the failure by Indemnitee to provide such notice shall not affect your obligations under this Section 3 to the extent that you are not materially prejudiced thereby. Indemnitee may at its own expense employ separate counsel and participate in the defense. In no event shall you settle any claim without Indemnitee’s express written consent unless such settlement includes a full release of Indemnitee from all known and unknown liabilities arising out of the facts giving rise to the claim. You further agrees to indemnify Indemnitee for any attorneys’ fees or other costs or expenses that NS incurs in the event that NS has to file a lawsuit to enforce any indemnity or additional insured provision of this PO.

4. LIMITATION OF LIABILITY.

IN NO EVENT SHALL NS OR ANY NS AFFILIATES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, OR LOST BUSINESS) REGARDLESS OF WHETHER OR NOT NS OR ANY NS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN BY NS OR ANY NS AFFILIATE.

5. CONFIDENTIALITY.

5.1 You agree that the terms and existence of this PO, as well as all information and material disclosed by NS to you, and all information and material that you or Your Personnel develops under this PO (including, without limitation, Deliverables) constitutes “NS Confidential Information.” You and Your Personnel shall not disclose NS Confidential Information to any third party person or entity, except to the extent required by a court or government agency order or rule (provided that you first give NS immediate written notice of such order or rule and sufficient time to enable NS to have the opportunity to quash or limit the scope of said order or rule). You may disclose NS Confidential Information only to those of Your Personnel (only if previously approved by NS in writing and only if you and such Your Personnel have previously signed a confidentiality agreement that is consistent with the terms of this Section 5 who possess a legitimate need to know for purposes of fulfilling your obligations to NS under this PO, and may use NS Confidential Information only for such purposes. NS Confidential Information does not include information that is or becomes publicly available without restriction to you or Your Personnel, or any other person through no wrongful act of yours or Your Personnel. All NS Confidential Information is and remains the property of NS, and upon NS’s written direction, you shall promptly return or destroy (with such destruction certified in writing by you) all NS Confidential Information, along with all copies and portions thereof, to NS. No such return or destruction of NS Confidential shall affect the confidentiality obligations of your or Your Personnel all of which shall continue in effect as provided in this PO. Without waiving any other rights that NS may have and notwithstanding anything to the contrary herein, NS may immediately terminate with cause (with no right to cure) this PO upon written notice to you in the event that you, including any of Your Personnel, uses or discloses NS Confidential Information other than as expressly permitted in this Section 5.

5.2 Notwithstanding anything to the contrary, you shall ensure that nothing that you disclose to NS constitutes confidential information of yours, including Your Personnel, or any third party. In the event that you wish to disclose, and NS desires to receive, any such information, the Parties agree that they shall separately execute a non-disclosure agreement prior to any such disclosure.

5.3 You agree that NS Confidential Information shall be subject to the organizational, technical, and physical controls and other safeguards set forth at the following Internet address www.nedshield.com. You acknowledge to NS that you have read and understand the terms contained in the foregoing Internet address. If you have access to NS Restricted Data, Sensitive Personal Information, or Controlled Data, as defined and set forth at the foregoing Internet address, or has access to a NS Information System as defined therein, you agree to apply such additional safeguards and to grant NS such additional rights as are set forth at the foregoing Internet address for such data.

6. CHARGES, PAYMENTS AND TAXES.

6.1 The Products, Deliverables and Services shall be provided at the rates specified in this Purchase Order (the “Fee(s)”) are firm and not subject to change. No additional charges of any kind shall apply, unless specifically agreed to in writing by NS. Except as otherwise agreed between the Parties in writing, you shall be responsible for all costs and expenses incidental to the performance of its obligations under this PO, including all costs of doing business incurred by you, and NS shall have no obligation to you or Your Personnel for any such fees or expenses. Neither periodic payments nor final payment shall constitute evidence that the Products or the Services were provided acceptable manner to, or other accepted by, NS. Any amount owing at any time from you to NS or any NS Affiliates for Services or Products provided under this PO may be set off against any amounts due and payable by NS to you. Such set-off is also applicable to any PERFORMANCE BONDS/SECURITIES OR GUARANTEES, that may be agreed between NS and you , and or required by this PO.

6.2 You shall invoice NS not later than ninety (90) days after completion of the Services and/or delivery of the Products, or as otherwise specified in the applicable Purchase Order. In order to be deemed acceptable, each invoice shall include, at a minimum: your name and address, NS’s Purchase Order number, a description of the Services and/or Products, the total amount billed, any travel and living expenses (“T&L Expenses”) or other permitted expenses (separately itemized) and any other information expressly agreed to by the Parties in writing. NS shall deem any invoice invalid that is received more than ninety (90) days after the due date, unless specific terms to the contrary are acknowledged by NS in writing. Unless prohibited by law or otherwise specified by NS or the NS Affiliate incurring direct billing, Fees, costs or any other expenses shall be payable within ninety (90) days from the date a correct invoice is received or approved by NS, or the applicable NS Affiliate incurring direct billing from you (the “Net Date”); provided NS may withhold payment of any disputed amounts in good faith pending resolution of such dispute. You agree that no such dispute shall affect the performance of Services, including the delivery of Products, under the Purchase Order in question or under any other outstanding Purchase Order. Unless prohibited by law, there shall be no service charges, penalties or interest charged NS for late payment(s).

6.3 Notwithstanding anything set forth in this PO, NS shall not be required to pay or reimburse any portion of Fees, expenses or charges to the extent such payment is prohibited by applicable law or regulation.

6.4 The Fee(s) shall not include applicable transaction taxes. If you are required to pay any federal, state, county, provincial or local value added, sales and use, and/or goods and services tax, or similar applicable tax(es) by law based on the Services and Products provided, you shall include a line item for such taxes on all invoices (identifying type and amount thereof) and shall assume sole responsibility for tracking such taxes. You shall ensure that the Fees are invoiced to NS in accordance with applicable rules so as to allow NS to reclaim any such value added and/or similar tax from the appropriate government authority. You shall timely remit to the appropriate governmental tax agency all such taxes collected from NS, or the NS Affiliate issuing and executing the applicable Purchase Order. Nothing in this PO, however, shall require NS to pay any payroll, franchise, corporate, partnership, succession, transfer, income, excise, profits or income tax of yours. In the event NS is required by applicable law, regulation or tax authority having jurisdiction over your activities in connection with this PO to withhold taxes for which you are liable, NS shall deduct such withholding tax from payment to you and provide to you a valid tax receipt in your name. If you are exempt from such withholding taxes as a result of a tax treaty or other regime, you shall provide to NS a valid tax treaty residency certificate or other tax exemption certificate at a minimum of thirty (30) days prior to payment being due. Should either Party realize that any tax included or omitted as a result of the transactions hereunder was made in error, the Parties shall cooperate to resolve such overpayment or underpayment.

6.5 To the extent that NS pre-approves in writing to you, NS shall reimburse you for all necessary, and reasonable travel, living and other related T&L Expenses in accordance with NS’s then current Travel & Living policy which can be found at the following Internet address http://www.gesupplier.com/html/GEPolicies.htm. You acknowledge that you have read and understand the terms contained in the foregoing Internet address. You shall either invoice T&L Expenses separately or clearly itemize such expenses on its invoices to NS.

7. INSURANCE.

7.1. You shall, at your own cost and expense, obtain and maintain, and cause all its contractors, suppliers and subcontractors to obtain and maintain, in full force and effect, with insurance carriers with a minimum A.M. Best’s rating of A-: VII, or S&P A, (i) Comprehensive General Liability (also known as Civil or Public Liability outside of the United States) on an occurrence form in the minimum amount of $1,000,000 per occurrence with coverage for contractual, products and completed operations liability; and (ii) Comprehensive Automobile (also known as Motor) Liability covering all motor used in the performance of the Order in the amount of USD$1,000,000 combined single limit each occurrence. NS shall be named as additional insured under Supplier’s Comprehensive General Liability policy for any and all purposes arising out of or connected to this Order – and insurances in the case of goods purchases shall be insured for 110% of the total PO value. Upon request, Supplier shall furnish a certificate of insurance certifying that insurance coverages are in effect. Supplier shall provide buyer at least 30 days’ notice should the required insurance be cancelled or non-renewed.

7.2. You and any relevant Your Affiliates shall, to the best of its ability, endeavor to provide NS, or the applicable NS Affiliate, with these insurance coverages to the extent applicable to the work and/or region where Services are being performed. If local governmental regulations, or availability of insurance policies where the Services are to be performed make compliance with these conditions impracticable, You or Your relevant Affiliate shall provide NS with a written explanation of the reasons why such specific coverage is not available and advise NS, or the relevant NS Affiliate, with alternate conforming insurance requirements which are, in the reasonable discretion of NS or the applicable NS Affiliate, adequate based on the nature of Services being performed and commercially available to You or Your relevant Affiliate, as the case may be. You or Your Affiliate shall have and maintain, at its sole cost and expense, in effect throughout the term of the relevant Agreement and/or relevant SoW the agreed insurance coverage as approved by NS or the relevant NS Affiliate.

· Workers’ Compensation (or equivalent) as required by applicable law.

· Employer’s Liability with limits of USD$3,000,000 each accident / USD$3,000,000 each disease /

$3,000,000 policy limit.

· Commercial General Liability (also known as Civil or Public Liability outside of the United States), including Product and Completed Operations Liability (including contractual and cross-liability coverage) on an occurrence form, with the following limits for Bodily/Personal Injury and Property Damage: $5,000,000 per occurrence, $5,000,000 general aggregate, USD$5,000,000 product completed operations. Coverage territory must include countries where the service is provided and/ or products may be used.

· If You will use motorized vehicles on NS premises or in connection with the provision of

Services and/or Deliverables, Business Automobile (also known as Motor) Liability covering all motorized vehicles (owned, non-owned, hired, etc.) used in connection with the Services, covering Bodily Injury and Property Damage with combined single limit of $3,000,000 per accident.

· Professional/ Errors and Omissions liability (also known as Professional Indemnity outside of the United States) covering Your activities with coverage limits of not less than $5,000,000 per claim and $5,000,000 in the aggregate. If policy is placed on a claims-made form, the retroactive date must precede the effective date of this Agreement and provide for continuity in cover for (1) year after the completion of the Services. If You will have access to NS’s IT systems or NS Restricted Data, coverage must also include loss of, mishandling of data containing private or confidential information of NS or others for which NS is responsible; and failure to prevent unauthorized access to, or use of, NS’s systems or data.  If You will have access to NS’s funds or accounts, Crime Insurance (also known as Employee Dishonesty insurance/ Fidelity Bond) in an amount of not less than USD$1,000,000 covering all Your Personnel and Subcontractors and including a Client’s interest endorsement or Insuring Agreement specifying that coverage extends to NS’s property in the event of any theft of NS money or property, or money or property of others for which NS is responsible. Verification that NS has been included as a Joint Loss payee under the policy must be provided upon request by Company.

· If the You either has NS property in its care, custody or control or is reliant upon its property in connection with the provision of Services and/or Deliverables, Property insurance on an All-Risk, Replacement Cost basis. If property includes that of the NS, policy must name NS as Loss Payee, as its interests may appear.

· If the scope of Services involves the potential for an environmental release, Environmental Impairment (also known as Pollution) Liability with a limit of not less than $USD10,000,000 per occurrence covering on-site and off-site bodily injury and property damage, including clean-up cost as a result of pollution conditions arising from the Your operations, including completed operations. If coverage is provided on a claims-made form, the retroactive date must precede the effective date of this agreement and provide for continuity in cover for (1) year after the completion of the Services.

· The amount of coverage specified herein may be satisfied with combined limits together with umbrella/excess liability policies which follow form and drop down to apply as primary insurance in the event an underlying policy is exhausted.

8. COMPLIANCE WITH NS POLICIES.

8.1 You agree to use all commercially reasonable efforts to ensure that any of Your Personnel who provide Services on NS’s premises comply with NS’s standard and site-specific safety, security and drug use policies that NS communicates to Your Personnel. You shall exercise all commercially reasonable efforts to assure that none of Your Personnel pose a threat to the safe working environment at the NS site, or a threat to the integrity of the business operations. At NS’s request, You agree to replace any of Your Personnel who fail to comply with NS’s standard and site specific policies.

8.2 You acknowledge that you have read and understand the NS Company Policies (performance and IT security – as relevant)  which may be updated or modified by NS from time to time (the “Guide”). You agree to fully comply with all relevant requirements of the Guide with regard to provision of Products, Services, and Deliverables. Without limitation, the Parties mutually acknowledge that failure to comply with this provision shall be deemed a material breach incapable of cure.

8.3 To the extent permissible by applicable law, you shall, through the utilization of an authorized background checking agency, perform background checks as required by NS prior to (i) stationing any of Your Personnel to perform Services at any NS location, facility or work site (for purpose of clarity, “stationing” shall not include periodic attendance or visits to such locations, facilities or work sites); (ii) granting access to NS networks (such as having a NS issued single sign-on account) to Your Personnel to provide the Services; (iii) assigning Your Personnel to duties that are directly related to the safe operation or security of a NS facility or piece of equipment and which, if not performed properly, could cause a serious environmental, health or safety hazard to employees or the general public; or (iv) assigning Your Personnel to a NS worksite that is designated in its entirety as “security sensitive,” even though the work responsibilities, if performed in another context, would not be security sensitive; and after securing appropriate written authorization from Your Personnel. You acknowledge that you have read and understand the terms contained in the foregoing Internet address and obtained a consent from Your Personnel for the background checks and complied with the European  Personal Information Protection Act.  (GDPR).

8.4  In the case that you are working with or are connected to any projects involving state security, the military or any civil defence organization through operation of this PO, you agree to abide by the security requirements of that organization – and warrant that all your employees shall do the same.

8.5 Where you provide goods to NS, or brings goods onto or uses goods on NS premises, you shall provide with the goods in the language(s) of the locations where the goods are delivered to NS or its designee: safe use instructions; hazard communication, safe transport and labeling information; compliance and certification documentation; and for chemical substances and mixtures, safety data sheets (MSDS/SDS). Unless NS has expressly agreed otherwise in writing, you certify that the goods do not contain any chemicals that are restricted or otherwise banned under the Montreal Protocol, the Stockholm Convention on Persistent Organic Pollutants, the US Toxic Substances Control Act, the European Union’s Restrictions on Hazardous Substances and REACH legislation, and other comparable chemical regulations (collectively “chemicals legislation”). For shipments of or containing chemical substances, you certify that the import and use of the goods in the location (s) where the goods are delivered complies with applicable chemicals legislation. Upon request you shall provide the chemical composition of the goods subject to reasonable protection of your confidential business information. The term “goods”, as used in this Section 8, includes, but is not limited to, Products.

9. BUSINESS CONTINUITY PLANNING.

9.1 In the event NS, at its sole discretion, identifies you as a critical supplier, you shall prepare, maintain and provide, at no additional cost to NS, a Business Continuity Plan (“BCP”) satisfactory to NS and designed to ensure that you can continue to provide the Services and Products in accordance with this PO in the event of a disaster or other BCP-triggering event (as such events are defined in the applicable BCP). your BCP shall, at a minimum, provide for (i) the retention, rotation, and retrieval of data and files; (ii) obtaining resources necessary for recovery, (iii) appropriate continuity plans to maintain adequate levels of staffing required to provide the Services and Products during a disruptive event; (iv) procedures to activate an immediate, orderly response to emergency situations; (v) procedures to address potential disruptions to your supply chain; (vi) a defined escalation process for notification of NS in the event of a BCP-triggering interruption; and (vii) training for Your Personnel who are responsible for monitoring and maintaining your continuity plans and records.

9.2 You shall maintain the BCP, update it no less than twice per year and test it at least annually. Upon NS request, you shall provide NS an executive summary of the plan updates, a summary of test results, and a report of corrective actions to be taken to remedy deficiencies identified as a result of the test, including timetables for new corrective actions and the status of corrective actions previously identified.

9.3 Upon request, with reasonable advance notice and conducted in such a manner not to unduly interfere with your operations, you shall give NS and its designated agents access to designated representative(s) with detailed functional knowledge of your BCP and relevant subject matter. Subject to confidentiality obligations under this PO, information requested by NS arising from such meetings shall be provided to NS within thirty (30) days or as otherwise mutually agreed.

10. NOTICES.

Notices and other communications required to be made under this PO must be in writing in English addressed to the Parties at such addresses as may be designated in writing by either Party to the other and shall be deemed received when a) delivered by hand, b) on the date indicated on the signed receipt if mailed by first-class registered or certified mail, postage prepaid, return receipt requested, c) delivered by overnight courier or d) delivered through electronic media such as email or fax.

11. USE OF NAME AND PUBLICITY.

You agree that you shall not, without NS’s or the applicable NS Affiliate’s prior written consent in each instance, (i) advertise, promote or publish the fact that NS or the applicable NS Affiliate purchased Products, Services and/or Deliverables from you; (ii) use in advertising, publicity or otherwise, the name or logo of NS or NS Affiliate, or any officer or employee of NS or its affiliated companies, nor any trade name, trademark, logo or simulation thereof owned by NS or any NS Affiliate, or (iii) represent, directly or indirectly, that any Product, Service or Deliverable has been approved or endorsed by NS or any NS Affiliate.

12. INDEPENDENT CONTRACTORS.

The relationship of the Parties hereunder is that of independent contractors. Nothing in this PO shall be deemed to create a partnership, joint venture, agency trust or similar relationship between the Parties, and neither Party shall be deemed to be an agent of the other Party. Without limitation to the foregoing, neither Party has any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other. Nothing in this PO shall be interpreted or construed as creating or establishing the relationship of employer and employee between NS and either you or Your Personnel.

13. AUDIT RIGHTS.

At NS’s written request, you shall allow NS (directly and/or through third parties) to audit and inspect your facilities, as well as copy any documents that you have relating to the performance of your obligations under This PO or other applicable legal requirements. Each of the Parties shall bear their own respective costs and expenses associated with any of the foregoing. Adjustments in favor of NS arising from any such audit shall be recognized as an adjustment of any future payment due you or, if no future payment is due you, you shall promptly pay the amount of any such adjustment to NS. You shall cooperate fully with NS, or its designees, in connection with audit functions and/or any inspections, assessment or verifications, in such a manner not to unduly interfere with your operations.

14. REMEDIES.

The rights and remedies of NS and NS Affiliates set forth herein are not exclusive and are in addition to any other rights and remedies available to NS and NS Affiliates at law or in equity.

15. SEVERABILITY.

If any part of this PO is declared invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the remainder of this PO, unless this PO so construed fails to meet the essential business purposes of the Parties as manifested herein.

16. ASSIGNMENT.

You shall not sell, assign, delegate, or otherwise transfer any of its rights or obligations hereunder without the prior written consent of, and any attempt to do so in contravention of the foregoing is hereby deemed null, void and with no effect. Subject to the foregoing, this PO shall be binding upon and inure to the benefit of the Parties, their respective successors and assigns.

17. COPIES.

Facsimiles and scanned images of original signatures are considered valid as original signatures. In addition, images of the original of this PO may be stored electronically. The Parties intend that electronic copies or images reproduced from the electronically stored original of this PO shall be valid as an original.

18. DIVESTITURE.

Any NS Affiliate divested by NS as an ongoing concern, or otherwise, may continue to (i) benefit under the terms of this PO, and/or (ii) issue Purchase Order’s under the terms of this PO, both of which for a period of one (1) year following divestiture. Any entity or business acquired by NS or a NS Affiliate may use this PO with any of their existing purchases with you.

19. NS AFFILIATES.

You acknowledge and agree that the Products, Services and Deliverables purchased under this PO may be used by NS on behalf of itself and, at no additional expense to NS, for the benefit of any NS Affiliate. Any NS Affiliate, worldwide, which uses the Products, Services and/or Deliverables, whether the right to use passes directly to that entity or not, shall be entitled to all of the rights and interests of NS under this PO, and may enforce this PO in its own name.

20. GOVERNING LAW AND DISPUTE RESOLUTION.

This PO (and all non-contractual or other obligations arising out of or in connection with it) shall be governed by, and construed in accordance with, the laws of Switzerland (or the court designated by Nedshield Switzerland AG) without reference to any conflict of law rules that might lead to the application of the laws of any other jurisdiction. Any dispute, controversy or claim arising out of or relating to this PO, including any question regarding their existence, validity, interpretation, breach, violation or termination (a “Dispute”), shall be submitted to the exclusive jurisdiction of Frauenfeld, Thurgau District Court. The prevailing Party shall be entitled to recover, in addition to its damages, its reasonable attorneys’ fees and internal in-house and management costs incurred in connection therewith.

21. ORDER OF PRECEDENCE.

In the event of an inconsistency between these PO Terms and any other terms of this PO, these PO Terms shall take precedence.

22. YOUR PERSONAL INFORMATION.

You understand and agree that NS may require you to provide certain personal information such as the name, address, telephone number, and e-mail address of Your Personnel in transactions to facilitate the performance of this PO, and that NS and its contractors may store such data in databases located and accessible globally by their personnel and use it for necessary purposes in connection with the performance of this PO, including but not limited to payment administration. You shall comply with any data privacy laws, including but not limited to the Euroean Personal Information Protection Act (GDPR) when you provide certain personal information of Your Personnel. NS agrees to use reasonable technical and organizational measures to ensure that your personal information is processed in conformity with applicable data protection laws. You may obtain a copy of your personal information by written request, or submit updates and corrections by written notice to NS.

23. ELECTRONIC COMMERCE.

You agree to participate in all of NS’s current and future electronic commerce applications and initiatives upon NS’s request. For purposes of this PO, each electronic message sent between the Parties within such applications or initiatives shall be deemed: (i) “written” and a “writing”; (ii) “signed” (in the manner below); and (iii) an original business record when printed from electronic files or records established and maintained in the normal course of business. The Parties expressly waive any right to object to the validity, effectiveness or enforceability of any such electronic message on the ground that a “statute of frauds” or any other law or rule of evidence requires written, signed agreements. Any such electronic documents may be introduced as substantive evidence in any proceedings between the Parties as business records as if originated and maintained in paper form. Neither Party shall object to the admissibility of any such electronic document for any reason, including, without limitation, the hearsay and best evidence rules. By placing a name or other identifier on any such electronic message, the Party doing so intends to sign the message with his/her signature attributed to the message content. The effect of each such message shall be determined by the electronic message content and by Swiss law, excluding any such law requiring signed agreement or otherwise in conflict with this Section 23.

24. OWNERSHIP OF DELIVERABLES.

NS is hereby the exclusive owner of all Deliverables and all intellectual property rights, including trade secrets, copyrights, moral rights, database rights and patents) thereto. All Deliverables considered “works made for hire” under the relevant Swiss Act shall be considered “works made for hire” under this PO. You shall establish an employee invention regulation or execute a contract with Your Personnel and provide reasonable compensation to Your Personnel for the “works made for hire”, in accordance with the Swiss Invention Promotion Act. You hereby assign to NS all right, title and interest to all other Deliverables, including any works of authorship and all intellectual property rights hereto, that are not considered “works made for hire” under the Act. To the extent that any of your, including any of Your Personnel’s, pre-existing materials (including third party or open source software) are contained in the Deliverables, said pre-existing materials must be identified as such in writing to NS prior to you commencing any Services or Deliverables, and you (on your behalf and on behalf of Your Personnel) hereby grants NS an irrevocable, worldwide, nonexclusive, paid-up, royalty-free, sublicensable (through all tiers of sublicensees) right and license to use, execute, reproduce, perform, display, distribute, and prepare derivative works of such pre-existing materials and derivative works, and to make, have made, use, sell, offer to sell, and import products and processes utilizing such pre-existing materials, but in any case limited to the extent needed by NS to exploit the Deliverables. Upon NS’s request and at your expense, you shall provide NS with such assistance as NS may require, including whatever documents, information or materials are in your possession or available to you, in order to enable NS to protect its ownership rights, including copyrights and patents, in any Deliverables. With respect to inventions for which NS wishes to seek patent protection, you agree to secure all necessary agreements with Your Personnel to ensure assignment of their interests in each such invention to NS as well. You at your expense shall take all reasonable steps necessary to secure cooperation of Your Personnel with NS in filing such patent applications, including obtaining the signatures of inventors on all necessary legal documents. To the extent a Deliverable includes or consists of software, you shall deliver to NS the complete source code and object code versions.

25. INSPECTIONS AND REJECTIONS.

25.1 All Products, Services and Deliverables covered by this PO shall be received subject to NS’s right of inspection (inspection by a Nedshield appointed 3^rd party eg. SGS), count, testing and rejection. Payment for Products, Services and/or Deliverables delivered hereunder shall not constitute acceptance thereof, and all payments against documents shall be made with a reservation of rights by NS for defects in Products, Services, and Deliverables, including, without limitation, defects apparent on the face thereof. You shall provide and maintain inspection and process control systems acceptable to NS for production of the Products and Deliverables, as well as performance of the Services. Records of all inspections by you shall be kept complete and available to NS during the performance of this PO or for such longer period as may be required by law. NS may inspect Products, as well as the provision of Services, at your facility at any time without waiving its right subsequently to reject or revoke acceptance of such Products, Services, or Deliverables for any defects. Failure of NS to inspect shall not relieve you from any of your responsibilities hereunder. You, at your expense, shall furnish, or cause to be furnished, facilities and assistance reasonably necessary to ensure the safety and convenience of any such inspections.

25.2 If any of the Products, Services or Deliverables are found at any time to be defective in design, materials or workmanship or otherwise to be not in conformity with the requirements of this PO, NS, in addition to such other rights as it may have under this PO, at law and/or in equity, at its option may: (i) reject such Services, as well as reject and return such Products and/or Deliverables at your expense; (ii) require you at your expense to replace the rejected Products and Deliverables, and/or re-perform the Services under a revised PO or release submitted by NS; or (iii) require you to inspect such Products, Services and/or Deliverables and remove and replace nonconforming Products and/or Deliverables with conforming Product and/or Deliverables, and/or re-perform the nonconforming Services, to conform with this PO. NS may at its option inspect, sort, remove, correct and replace such Products, Services and Deliverables, and you shall pay the actual cost thereof. If any Products, Services and/or Deliverables are rejected, NS shall deduct from amounts owed you under this PO the cost of rejected Products, Services and Deliverables. NS may also charge you, and you agree to pay, all direct and indirect costs incurred by NS as a result of any nonconforming Products, Services and Deliverables (including failure to meet delivery schedules) whether or not NS rejects such Products, Services, or Deliverables. NS shall itemize such costs to you, which may include, but not be limited to, cost of defective materials, a 15% handling charge, transportation charges, incidental material and labor costs, sorting and rework expenses, lost production starts directly caused by the defect(s) (including late delivery), or any other ascertainable costs creating a loss to NS. The foregoing is in addition to any other rights or remedies available to NS at law or in equity.

25.3 In the case that a performance bond, security or guarantee is provided to Nedshield in terms of this PO, and either the terms of the PO, the delivery times and or the quality of the delivered goods is not satisfied in any way,  the bond, security or guarantee shall be immediately forfeited at time of discovery. In the case that Nedshield agrees to continue with the acceptance of the services and or products, the value of the forfeiture shall not be added to the outstanding amount to be paid.

26. CHANGES.

26.1 NS shall have the right at any time to make changes of any kind (including, without limitation, quantity and NS’s specifications) to the Product, Deliverables and/or Services being purchased under this PO. If you believe that such change affects the price or delivery date for Products, Deliverables or Services hereunder, you shall so notify NS in writing (with adequate supporting documentation) within five (5) working days after receipt of NS’s change notice and an equitable adjustment may be considered by NS. Your request for any adjustments shall be waived unless submitted within such five (5) day period.

26.2 You shall notify NS in writing in advance of any and all changes to Products, Services, or Deliverables (including, without limitation, their respective specifications or composition), and of all process changes, plant moves, equipment changes or moves, or subcontractor changes, and no such change shall occur until NS has been given prior notice of such change. No such change shall occur without NS’s written consent. All such changes shall be documented by you following those written change procedures issued by NS from time-to-time. It is your responsibility to obtain, complete and submit proper documentation regarding any and all changes. Any such change made without the prior written consent of NS shall constitute a material breach, and NS shall have the right to terminate this PO immediately and without prior notice to you. The foregoing is in addition to all other remedies available to NS at law or in equity.

27. NS PROPERTY.

27.1 All tools, dies, layouts, models, drawings, plans, data, manufacturing aids, testing or other equipment or materials, inventions, technology, trade secrets, know how, all reproductions and replacements, or other proprietary information, and all intellectual property rights in the foregoing, which NS furnishes to you, or which is developed or acquired at NS’s expense or at its direction in the performance of work hereunder, (collectively and individually, “NS Property”) is NS’s property and is hereby deemed a bailment to you. All NS Property furnished by NS to you is provided on an “AS IS” basis. You: (i) hereby assign and agree to assign to NS, all NS Property (including, without limitation, reasonably cooperating NS to secure any and all intellectual property rights developed under this PO by, for example, assisting in the filing and prosecution of patent applications, timely reviewing drafts, providing documentary evidence, and executing such documents as NS may reasonably request); (ii) bear the risk of loss and damage to all NS Property; (iii) shall safely maintain NS Property separate from your property; (iv) shall mark NS Property as “Property of Nedshield”; (v) shall not move NS Property from your premises without NS’s prior written consent; (vi) shall not allow third parties to control, use, access or possess NS Property; (vi) shall ensure that only your employees use and have access to NS Property solely for purposes of fulfilling your obligations to NS under this PO; (vii) shall not substitute any property for NS Property; (viii) shall insure all NS Property consisting of tangible property at full replacement cost; (ix) shall at your sole cost and expense be responsible for operating, maintaining and calibrating the NS Property in accordance with the manufacturer’s specifications and recommended guidelines; (x) shall maintain and make available to NS upon its request, sufficient records of all NS Property (including a description and part number of each and every Product, including components thereof, that the NS Property is used to create, maintain, and/or test said Product); (xi) shall promptly disclose to NS the creation or acquisition of any and all NS Property, and provide a consolidated list on a semi-annual basis (or as otherwise requested by NS); and (xii) shall not take or allow any lien or other security interest against NS Property.

27.2 You shall return NS Property to NS in the same condition as originally received by you (except for normal wear and tear) upon the earliest to occur: (i) when any NS Property is no longer reasonably required by you to fulfill your obligations to NS under this PO; (ii) when notified by NS (unless NS Property is consumed or otherwise disposed of with NS’s prior written consent); or (iii) upon expiration or termination of this PO. In any such event, all NS Property shall (at NS’s election) either be immediately (a) released by you to NS, or (b) delivered by you to NS (or its designee) properly packaged and marked in accordance with instructions from NS, utilizing the carrier designated by NS, and delivered to the location designated by NS. If NS elects option (b) above, NS shall reimburse you for the necessary actual and incurred costs of any such transportation and delivery to a designated location; provided, however, that you shall be responsible (and NS shall not reimburse you) for any such costs if NS terminates this PO with cause.

27.3 Notwithstanding anything to the contrary, no rights, title or licenses are granted to you under any NS patents, copyrights, trade secrets, or other property (including intellectual property) rights. Under no circumstances shall any such rights, title or licenses be implied.

28. WAIVER.

No claim or right arising out of a breach of this PO can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the waiving Party. The failure of NS to enforce at any time or for any period of time any of the provisions of this PO shall not be construed to be a waiver of such provisions nor the right of NS thereafter to enforce each and every such provision.

29. NS’S PO COMMITMENT.

29.1 NS is not committed to purchase any Products or Services except for such Products (and only in such quantity as may be specified as firm in this PO) and Services. Under no circumstances shall NS be under an obligation to you for Products or Services (including any Deliverables) not specifically covered by this PO.

29.2 Unless otherwise agreed to in writing, you shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet the requirements of this PO. Products shipped in advance or in excess of such requirements may be returned to you at your risk and expense, and you shall reimburse NS for all costs incurred for warehousing, storage and handling of said Products.

30. DELIVERY.

30.1 If you for any reason anticipate that deliveries of Products, Deliverables and/or Services shall not be made as required by this PO, you shall immediately give NS written notice setting forth the cause(s) of the anticipated delay. If delay or inability to perform arises from interruption of supply or scarcity of raw materials or parts used by you, NS’s orders shall be given priority in production scheduling. NS reserves the right, without liability, to take any or all of the following actions if for any reason you do not substantially comply with your Product, Deliverables and/or Services delivery obligations: (i) assess a late delivery fee of no more than 1.0% per day of the invoice amount of late deliveries of Products, Deliverables and/or Services; (ii) submit a revised PO; (iii) terminate this PO in whole or in part and purchase the Products, Deliverables and/or Services elsewhere, and you shall be liable for any resultant costs INCLUDING and penalties that NS will have communicated and or agreed with you; (iv) direct you in writing to ship by a method other than that indicated in this PO, work such overtime or do whatever is necessary to avoid the delay, and pay any and all transportation charges, concessions to NS’s customers, liquidated damages, and any other costs and expenses incurred by NS; or (v) seek specific performance of your obligation to deliver. The foregoing is in addition to all other rights or remedies available to NS at law or in equity. 30.2 You shall use only NS-approved carriers and forwarders for transportation of Products and Deliverables. You shall reimburse NS for all costs and expenses incurred by reason of shipment by method or carrier not approved by NS in writing and in advance.

30.3 Unless otherwise stipulated in writing by NS, title to and risk of loss of the Products shall pass to NS at the destination designated by NS or NS’s designee, upon completion of delivery and you shall bear the risk of loss of the Products until such delivery. If the Products are to be delivered in installments, title to each installment shall pass in the same way as provided in this PO.

30.4 The Products shall be suitably packed and/or protected for shipment and transportation, the cost for which shall be borne by you or your representative. Each package shall bear NS’s order number and be accompanied by a readily accessible packing note detailing the contents and conforming with any applicable importation regulations. Your failure to comply with the shipping and transportation instructions or to provide sufficient packing shall render you liable for any resulting damage and/or expense incurred by NS.

31. YOUR PERSONNEL.

31.1 You shall not assign, delegate or subcontract any portion of its rights, duties or obligations without the express prior written consent of NS; any actions taken by you in contravention of the foregoing is hereby deemed null and void. Notwithstanding your retention of Your Personnel and any such NS’s consent, you shall remain entirely responsible for your, as well as Your Personnel’s, delivery of all Products, Services and Deliverables, as well as compliance with all terms of this PO.

31.2 NS shall, at all times, have the right to review and approve any of Your Personnel assigned to perform Services, and to reject or have removed immediately any of Your Personnel from the provision of Services hereunder. The exercise of this right shall be independent of any alleged breach by you of this PO. You shall pay the costs of familiarizing any Your Personnel replacements, and NS agrees that time deadlines and cost estimates, if any, may require adjustment as a result of replacing Your Personnel, unless removal is for good cause. NS may request to interview and approve any of Your Personnel replacements prior to such individual’s commencement of Services for NS; NS’s approval shall not be unreasonably withheld.

31.3 Nothing in this PO shall be interpreted or construed as creating or establishing the relationship of employer and employee between NS and either you or any of Your Personnel. You shall be solely responsible for payment of all compensation owed to Your Personnel, as well as federal and state income tax withholding, social security taxes, and unemployment insurance applicable to Your Personnel as employees, and you shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits (if any) to which Your Personnel may be entitled. Neither you nor Your Personnel shall have any right or authority to assume or create any obligation of any kind, expressed or implied, in the name of or on behalf of NS. You are responsible for all employer obligations toward all of Your Personnel under all applicable laws and NS policies. You shall defend, indemnify and hold NS harmless against any claims that in any way (i) assert that any of Your Personnel are employees or joint employee of NS, (ii) relate to the conduct of any of Your Personnel; and/or (iii) pertain to a breach of this PO by any of Your Personnel.

31.4 You shall be responsible for maintaining satisfactory standards of personnel competency, conduct and integrity, and shall be responsible for taking such disciplinary action with respect to all such of Your Personnel as may be necessary. Without limitation to the foregoing and when Your Personnel are on NS’s premises, you shall immediately remove and replace any of Your Personnel if NS determines that such of Your Personnel violated or may have violated any NS policies. In addition, for Your Personnel providing Services in the United States, you shall also assure Your Personnel’s status to rightfully work in the United States through compliance with the Immigration and Naturalization Service’s I-9 process. For Your Personnel providing Services in jurisdictions outside the United States, you shall assure that such of Your Personnel comply with local law requirements in such jurisdictions with respect to the right to work in such jurisdiction.

31.5 You are solely responsible for procuring and maintaining, and for ensuring that all of Your Personnel aqree to comply with, all necessary permits and licenses of governmental entities required in connection with your performance of the Services, including, where applicable, processing and procuring all necessary visas, work permits, and passport documents for its employees in advance of their assignment in connection with the provision of any Services in a timely manner to avoid any unnecessary delay.

32. IMPORTS.

32.1 Unless otherwise specifically provided by NS in writing, NS shall be Importer of Record.

32.2 You warrant that all sales made hereunder are and shall be made in circumstances that shall not give rise to the imposition of anti-dumping or countervailing duties under United States law (19 U.,S.C. § 1671), European Union (Council Regulation (EC) No. 384/96 of December 22, 1995, Commission Decision No. 2277/96/ECSC of November 28, 1996), similar laws in such jurisdictions or of any other country to which the Products may be exported, as currently in force or as may be amended. To the extent permitted by law, you shall indemnify, defend and hold NS harmless from and against any costs or expenses (including but not limited to any countervailing and/or dumping duties which may be imposed, and to the extent permitted by law, and any preliminary dumping duties that may be imposed) arising out of or in connection with any breach of the above warranty and covenant.

32.3 If you are the Importer of Record, you agree that NS shall not be a party to the importation of Products, that the transaction(s) contemplated by this PO shall be consummated subsequent to importation, and that you shall neither cause nor permit NS’s name to be shown as “importer of record” on any customs entries or declarations. Upon request and where applicable, you shall provide NS with all documents and properly executed forms as required by applicable export control laws and regulations and shall further provide all commercial invoices in proper form to allow NS to apply for and receive duty drawback. You shall not disclose any information regarding NS and/or Products contrary to applicable export control laws and regulations of any jurisdiction.

32.4 You shall provide, in a timely, complete and accurate manner, to NS or NS’s designated agent, all data required to enable NS’s compliance with the U.S. Customs Importer Security Filing and additional Carrier Requirements regulation, 19 C.F.R. Part 149 (the “ISF Rule”) for all of your ocean shipments of Products to NS destined for or passing through a United States port, including without limitation, the timely, complete and accurate provision of the ISF-10 Elements thereunder. You shall indemnify and hold harmless NS, its directors, officers, employees, agents, representatives, successors and assigns from and against any and all actions or proceedings, at law or in equity, and from and against any and all claims, demands, losses, judgments, damages, costs, fines, expenses or liabilities resulting from or in any way connected with your breach of its obligations under this Section 32.4.

32.5 in the case of transactions involving the United States , please note : The Customs-Trade Partnership Against Terrorism (C-TPAT) program of the United States Customs and Border Protection (“CBP”), the Authorized Economic Operator for Security (“EU AEO”) program of the European Union, the Canadian “Partners in Protection” (PIP) and similar programs (herein collectively and individually referred to as “Program(s)”) are designed to improve the security of shipments in international trade. You agree that you shall review the requirements of the applicable Programs as appropriate for its business, and that you shall maintain a written plan for security procedures in accordance with them (“Security Plan”). The Security Plan shall address security criteria, including container security and inspection, physical access controls, personnel security, procedural security, security training and threat awareness, and information technology security. In addition to the above requirements, you:

(i) represent and warrant that if you are eligible to be Program certified it shall be a member, it complies with the requirements of the Program as applicable and has such procedures that shall include those modifications prescribed from time-to-time by the CBP or NS. In the event you are ineligible to be Program certified, you agree to develop and implement a plan to enhance security procedures in accordance with the recommendations to meet C-TPAT Minimum Security Criteria (including, but not limited to, GPS tracking, cellular contact, and detection capabilities), AEO, PIP or similar programs.

(ii) shall identify an individual contact responsible for your facility, personnel and shipment security measures and provide such individual’s name, title, address, email address and telephone and fax numbers, upon request by NS;

(iii) shall place and seal on all truckload shipments (whether Full Truck Load (FTL) or Full Container Load (FCL)) with an ISO 17712 seal properly applied. You agree to purchase, as well as maintain a log of) ISO 17712 seals for tracking purposes, and maintain on file the current and applicable ISO Seal Certification issued within the past 2 years.

(iv) inform NS of its C-TPAT, AEO, PIP or similar program membership status, and if Program certified, inform NS of its SVI number or membership number, as well as such other information as NS may require, and immediately inform NS of any changes to its Program certification status.

All costs associated with development and implementation of your Security Plan and supply chain security compliance shall be borne by you. Where you do not exercise control of manufacturing, storage or transportation of goods destined for delivery to NS or its customers in international trade, you agree to communicate the foregoing requirements in writing to Your Personnel, including without limitation, transportation providers, and to use commercially reasonable efforts to ensure that Your Personnel implement such requirements.

32.6 You represent and warrant complying with all applicable federal, state, or local laws, regulations, or requirements of the United States and any other nation relating to import/export matters. You shall also obtain all applicable permits and licenses necessary to perform its obligations under this PO, and upon NS’s request, shall provide NS with copies of such permits and licenses. Where Products contain United States components, you shall also provide NS with details of the United States content value as a percentage of the Product price upon NS’s request. Additionally, you shall provide ECCN and Harmonized Tariff numbers assigned to Products or any other information NS may reasonably require upon request.

32.7 You shall mark each Product, and, as appropriate, Product packaging, labels, or invoices with the country of origin for the Product, in accordance with the applicable trade and customs laws. You shall also provide acceptable and auditable documentation that establishes the country of origin for Product, including without limitation, certifications of origin for Products qualifying for NAFTA preferential duty provisions, as applicable.