Effective January 1st, 2017THESE TERMS (“Terms”) contain WD-40 Company’s standard Purchase Order Terms and Conditions. Our Terms are incorporated by reference to these Terms in any Purchase Order (a “PO”) for goods and other material items (referred to as “Goods”) or services (“Services”) issued by WD-40 Company or any WD-40 Company subsidiary (“WD-40”) to the supplier of such Goods and/or Services identified in that PO (“Seller”), except to the extent any Terms conflict with a written agreement between WD-40 and Seller (the “Parties”), or other written terms that WD-40 has provided to Seller that specifically cover the applicable PO. Seller’s acceptance of WD-40’s PO shall not be conditioned upon acceptance of revised or alternative terms and conditions through the issuance of a conditional acceptance or the subsequent issuance of an invoice containing revised terms intended to apply to future POs. Any such conditional acceptance or invoice terms and conditions shall be void. Performance by Seller of the terms of WD-40’s PO by delivery of the Goods or performance of Services shall be deemed to be an acceptance of these Terms. The term “Buyer” herein refers to the WD-40 affiliate identified as the “Buyer” on the applicable PO.
1. SERVICES AND DELIVERABLES. Seller agrees to perform the Services and/or provide the Goods, described in any PO, in accordance with the applicable PO and with these Terms.
2. DELIVERY. Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier, and to the place specified on the face of the applicable PO. Seller is responsible for PO shipping activities. PO shipping activities include: (i) receiving PO from Buyer; (ii) generation of shipping documents and packing slips; (iii) labeling shipments as required; and, (iv) outbound loading.
3. TITLE AND RISK OF LOSS. Seller warrants that it has good and clear title, free from any security interest, lien or other encumbrance, to all Goods to be delivered to Buyer. Title and risk of loss or damage to the Goods shall pass to Buyer upon delivery to the FOB point, subject to Buyer’s right to reject non-conforming Goods. Notwithstanding the foregoing, risk of loss of any non-conforming Goods or deliveries shall remain with the Seller unless and until Buyer finally accepts such Goods or deliveries.
4. INSPECTION; ACCEPTANCE. Final inspection of Goods delivered shall be made at Buyer’s premises unless otherwise specified in writing signed by both parties. Buyer shall either accept or reject Goods or Services within the later of (a) sixty (60) days after the due date specified in the applicable PO or (b) sixty (60) days after receiving such Goods or Services. Any non-conformity in any Goods or Services shall be deemed to substantially impair the value of the Goods or Services to Buyer and shall entitle Buyer to reject such Goods or Services or to revoke its acceptance thereof. At Buyer’s option, Buyer may return non-conforming Goods or Services to Seller, freight collect, or Buyer may modify or adapt non-conforming Goods or Services to render such Goods or Services acceptable. If Buyer elects to return such non-conforming Goods or Services, Seller shall issue a return authorization number for all non-conforming Goods within 24 hours after Buyer’s request, and such non-conforming Goods or Services shall be the property of the Seller. If Buyer elects to modify or adapt non-conforming Goods or Services, Buyer may offset all costs incurred in performing any such modifications and adaptations against any and all amounts otherwise due to Seller or, at Buyer’s option, may bill Seller directly for such costs.
5. PRICE AND PAYMENT TERMS. The prices of Goods delivered and Services performed shall be as specified in Buyer’s PO. The PO will specify whether items therein are taxable, and Seller shall invoice Buyer accordingly. Buyer shall pay for Goods and Services accepted within the later of (a) thirty (30) days after Buyer’s acceptance of such Goods or Services or (b) thirty (30) days after receipt of Seller’s invoice. Buyer shall have no obligation to pay for any Goods or Services that are rejected or as to which acceptance is revoked in accordance with Paragraph 4 above.
6. WARRANTIES. Seller warrants that all Goods dispatched pursuant to Buyer’s POs shall be free from defects in workmanship and materials, shall be fit for the intended purpose as set forth in Seller’s specifications to the extent such specifications are consistent with those provided by Buyer (the “Specifications) and shall conform to the Specifications for a period of one (1) year from the date of acceptance of each Good, except that in the case of any latent defect or any defect caused or concealed by Seller’s fraud or gross negligence, the warranty period shall be extended until the expiration of one (1) year after Buyer’s actual discovery of such defect. Further, Seller shall immediately repair or replace any such defective Goods at its sole expense within thirty (30) days after notice of rejection of the Goods is given to Seller by Buyer. Seller further agrees to provide Buyer with a return material authorization (“RMA”) or other instructions for the handling of the Goods within (forty-eight (48) hours after notification by Buyer of receipt of any non-conforming Goods. The RMA number shall be used by Buyer to return any and all warranted materials for immediate replacement. Any Good which is repaired or replaced by Seller shall be warranted as provided in this Section 6 for the remainder of the warranty period or one (1) year after the replacement Good is accepted, whichever is later. All Goods dispatched shall contain all new materials, shall strictly conform to the requirements stated in the applicable PO and the Specifications. Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and that any statements of work signed by authorized representatives of Buyer and Seller. Seller represents and warrants that the performance of Services under these Terms will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which the Seller is bound.
7. INDEMNITY. Seller will indemnify, defend, and hold harmless Buyer, its affiliates, and their successors, assigns, officers, directors, employees, and agents for, from and against any claim, liability, loss, damage, lien, judgment, duty, fine, civil penalty and cost, including attorney’s fees and litigation expenses, arising out of Seller’s failure to comply with any of its obligations under a PO (including these Terms), which may include without limitation, those relating to a resulting recall of Buyer’s products or other reasonable action Buyer takes regarding such failure.
8. INFRINGEMENT. In addition to the warranties set forth in Paragraph 6 above, Seller warrants that all Goods delivered and Services performed shall be delivered free from any claim that such Goods or Services infringes any patent, copyright, trade secret, or other intellectual property right of any third party, except insofar as such claims are based solely on Seller’s literal compliance with Buyer’s written specifications for such Goods or Services. Seller shall indemnify, defend and hold Buyer and its customers harmless against any losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees), arising out of or resulting from any claim alleging facts that, if true, would constitute a breach of the warranty stated in this Paragraph 8. Buyer will notify Seller of any such claim and permit Seller, at Seller’s sole expense, to defend or settle such claim. In the event that any Good or Services is determined to infringe any intellectual property right of any third party, Seller shall, at Buyer’s option, either: (i) obtain from such third party, at Seller’s sole expense, the right for Buyer and Buyer’s customers to continue using the infringing Goods and/or Services, (ii) modify the Goods and/or Services at Seller’s sole expense so as to render them non-infringing, while maintaining substantially identical fit, form and function, or (iii) refund to Buyer the aggregate purchase prices paid for all infringing Goods and Services.
9. INDEPENDENT CONTRACTOR. Seller is an independent contractor for all purposes, without express or implied authority to bind Buyer by contract or otherwise. Neither Seller nor its employees, agents or subcontractors (“Seller’s Agents”) are agents or employees of Buyer, and therefore are not entitled to any employee benefits of Buyer, including but not limited to, any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under these Terms and shall provide Seller’s own supplies and equipment.
10. CONFIDENTIALITY. In connection with these Terms, Buyer may disclose certain non-public information, data and material of a proprietary nature (including, without limitation, information that is subject to protection as trade secrets) whether relating to marketing, pricing, technical, financial or other matters (collectively “Confidential Information”). The confidentiality provisions of these Terms shall not apply to the extent that Buyer and Seller have executed and are presently bound by the terms of a separate non-disclosure or confidentiality agreement. All Confidential Information shall be subject to the following:
- Held in Confidence. Confidential Information shall be received and retained in the strictest confidence (subject to the same standard of care accorded Seller’s own proprietary information and in any event no less than a reasonable standard of care) by Seller and will be deemed to be proprietary information of Buyer and Seller agrees that it will not disclose such Confidential Information to third parties;
- Limited Use. Confidential Information shall be used by Seller solely for the purpose of implementing these Terms;
- Disclosure to Employees. Confidential Information shall be disclosed only to those employees with a “need to know” (i.e. employees that require the Confidential Information to perform their responsibilities in connection with these Terms), together with notice of their obligations with respect thereto;
- Limited Copying. Confidential Information shall be copied only as necessary for those employees who are entitled to receive it; and ensure that all confidentiality notices are reproduced in full on such copies; and
- Return of Confidential Information. Seller shall immediately return all copies of such Confidential Information to Buyer at Buyer’s request except that Seller’s counsel shall be entitled to retain one set of copies for record keeping purposes only.
- Is known by Seller prior to disclosure by Buyer, and is not subject to or in violation of an obligation of confidentiality;
- Is or becomes public knowledge other than by default of Seller;
- Is obtained by Seller from a bona-fide third person having free right of disposal of such information;
- Is wholly and independently developed by Seller without reference to the Confidential Information; or
- Seller is required to disclose pursuant to a valid order of a court or other governmental body or any political subdivision thereof, provided, however, that Seller shall first have given notice to Buyer in order that Buyer may make an effort to obtain a protective order requiring that the information and/or documents so disclosed be used only for the purposes for which the order was issued.
10.3 Trade Secret Information. Proprietary Confidential Information that is entitled to protection under applicable trade secret laws, including the California Uniform Trade Secrets Act (“Trade Secret Information”), shall be clearly marked by Buyer as “proprietary” and/or as “trade secret” prior to its disclosure to Seller. All Trade Secret Information shall be held in the highest and strictest confidence by Seller. Seller shall not disclose any Trade Secret Information to any persons, other than those persons directly employed by Seller having a need to receive such Trade Secret Information for purposes related to these Terms, without express written permission from Buyer. Seller agrees to execute such other agreements and instruments and to cooperate with Buyer as Buyer may reasonably require for the protection of its Trade Secret Information.
10.4 Survival of Rights and Obligations. This Section 10 shall survive termination of these Terms and fulfillment of the related PO for a period of three (3) years; provided, however, with respect to Trade Secret Information, Seller’s obligations under this Section 10 shall continue in perpetuity.
11. BUYER PROPERTY. All property used by Seller in connection with its performance under the Terms which is owned, furnished, or consigned by Buyer, or is charged to or paid for by Buyer, including but not limited to materials, tools, dies, jigs, molds, patterns, fixtures, equipment, drawings, specifications and other technical documentation (the “Property”) shall be and remain the property of Buyer. Unless already so marked by Buyer, Seller shall identify and conspicuously mark all Property, as belonging to Buyer and, upon request, shall furnish Buyer a list of all Property being held by Seller. All Property shall be used only for Seller’s performance under the Terms and held at Seller’s risk and insured at Seller’s sole expense in an amount equal to its replacement cost, with loss payable to Buyer. Buyer may inspect and/or remove any Property at any time at no charge to Buyer, and Buyer shall have reasonable access to Seller’s premises for such purpose. Seller shall return such Property to Buyer upon Buyer’s demand at Seller’s sole expense.
12. PATENT AND DATA RIGHTS. Seller agrees to promptly disclose to Buyer and upon request to assign to Buyer, each invention conceived or first actually reduced to practice during the performance of the Terms. Further, Seller hereby grants to Buyer a royalty-free, nonexclusive, unrestricted, irrevocable, world-wide license to use, duplicate, or discard, or disclose for any purpose whatsoever and to authorize others to do so, all data and information (including but not limited to writings, recordings, pictorial reproductions, drawings, computer programs, other graphic representations and services of similar nature) required to be furnished and/or actually furnished to Buyer under these Terms.
13. CHANGES. Buyer may at any time instruct Seller to make changes within the general scope of these Terms in any of the following: (i) Buyers drawings, designs, or specifications furnished to Seller; (ii) Seller’s method of shipment or packing; (iii) the quantities of Goods ordered; (iv) the place of delivery; and/or (v) the delivery schedule. If any such change causes an increase or decrease in the cost of, or time required for, performance under these Terms, Seller shall have thirty (30) days to request adjustments in the price and/or delivery schedule for Goods directly affected by Buyer’s changes. To the extent that Buyer agrees to such adjustments, Buyer will revise the PO accordingly. Any requests by Seller for adjustments under this Paragraph 13 shall be deemed waived if not asserted within such thirty (30) day period, and failure to agree to an adjustment shall not excuse Seller from performing in accordance with the revised PO in the event that Seller makes changes in its design, manufacturing process, or specifications that affect Goods to be delivered or Services to be performed under these Terms, even if such changes do not materially alter the form, fit or function of such Goods or Services. Seller shall inform Buyer of such changes not less than thirty (30) days before the Due Date in the PO specified for such Goods or Services.
14. REPRESENTATIONS. By acceptance of Buyer’s PO, Seller is certifying that Seller is in full compliance with the Fair Labor Standards Act of 1938, as amended, and regulations issued there under. Upon request, Seller shall furnish Buyer with satisfactory evidence of its compliance with the representation in this Paragraph 14.
15. TERMINATION; CANCELLATION. Unless otherwise provided in a written agreement executed by Seller and Buyer, Buyer may terminate any PO or any portion thereof upon giving notice to Seller of such termination not less than two (2) business days prior to the earliest applicable Due Date set forth in the original PO, and Buyer will revise or revoke the PO accordingly. Within ten (10) business days after receiving notice of such termination, Seller shall advise Buyer in writing of any cancellation charges it desires to impose as a direct result of such termination. To the extent such charges are deemed reasonable in Buyer’s sole discretion, Buyer will pay such cancellation charges within forty-five (45) days after the date of the Seller’s written request therefore. Any request by Seller for cancellation charges shall be deemed waived if not asserted within ten (10) business days after Buyer’s termination notice. Notwithstanding the foregoing, Buyer may cancel any PO or portion thereof without charge at any time upon the notice to Seller if: (a) Seller fails to timely perform any of its obligations under these Terms and such failure is not cured within ten (10) days after written notice of such failure is delivered to Seller, and/or (b) there is or comes to be any material misstatement or omission in the Representations and Certifications submitted to Buyer by Seller (if any) or in any of Seller’s representations in Paragraph 14 above.
16. ASSIGNMENT. Seller shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Buyer, and any assignment in violation of this provision shall be null and void. Notwithstanding the foregoing, Seller may assign claims for monies due or to become due under these Terms without Buyer’s consent provided that Seller promptly furnishes Buyer with two signed copies of all documentation evidencing such assignment and further provided that payment to any assignee shall be subject to setoff or recoupment of any present or future claim(s) that Buyer may have directly with Seller with respect to all matters other than payment of monies due under these Terms.
17. APPLICABLE LAW. These Terms shall be governed by the laws of the State of California. All disputes arising in connection therewith shall be heard only by a court of competent jurisdiction in San Diego County, California, and the prevailing party in any legal proceeding shall be entitled to recover its reasonable attorneys’ fees incurred in connection therewith. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to the purchase of Goods or Services by Buyer.
18. LIMITATION OF LIABILITY AND WAIVER OF DAMAGES. Seller agrees that Buyer will not be liable under any circumstances for special, indirect or consequential damages (including but not limited to loss of profits) arising out of a breach of these Terms or a related PO or the termination thereof. By acceptance of Buyer’s PO and acceptance of these Terms, Seller waives its right to seek any such special, indirect or consequential damages under any legal or equitable theory.
19. MISCELLANEOUS PROVISIONS. No addition or modification of these Terms shall be effective unless made in writing and signed by the respective representatives of Seller and Buyer. Any delay or failure to enforce at any time any provision of these Terms shall not constitute a waiver of the right thereafter to enforce each and every provision thereof. If any of the provisions of the Terms is determined to be invalid, illegal, or otherwise unenforceable, the remaining provisions shall remain in full force and effect. The rights and remedies expressly provided to Buyer herein are not exclusive, but are cumulative and in addition to any other rights and remedies available at low or in equity.
20. COMPLIANCE WITH LAWS AND WD-40 COMPANY GLOBAL COMPLIANCE POLICY AND CODE OF CONDUCT. Seller agrees to comply with all applicable laws and regulations, including but not limited to wage, hour, labor and equal opportunity laws, personal information and privacy laws, trade-related laws, including but not limited to export control, embargo and sanctions, anti-boycott and import or export laws, and laws that restrict, regulate or require disclosure of, product content including laws relating to packaging, labelling and transportation of products (including, without limitation, hazardous materials). Seller has read and agrees to comply with the WD-40 Company Global Compliance Policy and Code of Conduct (the “Global Compliance Policy”) and the WD-40 Conflict Minerals Compliance Policy (the “Conflict Minerals Policy” and together with the Global Compliance Policy, the “WD-40 Company Policies”). Seller’s breach of the WD-40 Company Policies shall constitute an immediate breach of these terms and Buyer may thereupon cancel any outstanding PO without penalty in addition to any other remedies Buyer may have in connection with such breach.
21. OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS. If covered and if such regulations are applicable, this contractor and subcontractor shall abide by the requirements of 41 C.F.R. § 60‐1.4(a), 60‐300.5(a) and 60‐741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran’s status.
22. CORRESPONDENCE. Seller shall place Buyer’s applicable PO number and Project number on all notices, correspondence, invoices, packing slips and packages pertaining thereto. All written correspondence other than invoices shall be sent to the attention of the person identified as the “Buyer” on the PO, addressed to 9715 Business Park Ave. San Diego, CA 92131. All invoices shall be addressed to BUYER Company, Attn: Accounts Payable, 9715 Business Park Ave. San Diego, CA 92131.
WD-40 Company and its worldwide subsidiaries, including the WD-40 Company affiliated party that has contracted with you for goods or services (referred to herein as the “Company”), adhere to international standards and legal requirements relating to ethical conduct and anti-corruption compliance. It is our policy to maintain the highest level of professional and ethical standards in the conduct of our business affairs, placing the utmost importance upon our reputation for honesty, integrity and ethics. We value our relationship with all vendors and distributors, and we require that our vendors and distributors affirm specific contractual requirements for compliance with all applicable laws and to agree to abide by a specific code of conduct. By agreeing to do business with us under applicable purchase order terms and conditions or in accordance with a separate written contract, you (“Contract Party”) and the Company agree to be bound by the following provisions, in addition to any terms and conditions that otherwise may apply to our existing business relationship (the “Business Relationship”). You and the Company agree that the following provisions, to the extent they are inconsistent, shall supersede any terms and conditions included in any purchase orders, invoices for goods or services, or other oral or written agreements that we may have in connection with the Business Relationship.
1. Compliance with Laws. During the course of the Business Relationship, and in any related activities, each party shall comply with all applicable laws and regulations, including, but not limited to, the laws of the jurisdictions in which the Company and Contract Party do business and the laws governing performance and interpretation of this Code. In addition, the Company and Contract Party specifically agree to comply with the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”) and the U.K. Bribery Act 2010. For purposes of this Code, certain terms not otherwise defined herein are defined in a Glossary section included after Section 2 below.
2. Anti-Corruption Representations and Obligations. Contract Party hereby represents, warrants and agrees that:
- 2.1 In carrying out its responsibilities during the course of the Business Relationship, Contract Party and its affiliates, agents, representatives, owners, directors, officers or employees have not and will not offer, promise, pay or authorize the offer, promise or payment of money or anything of value to a government official for the purpose of (i) influencing any act or decision of that government official in his or her official capacity; (ii) inducing that government official to act or omit to act in violation of his or her lawful duties; or (iii) inducing that government official to influence any act or decision of a government entity to obtain or retain business for, or direct business to Contract Party or the Company, or to secure any advantage for any for Contract Party or the Company.
- 2.2 In carrying out its responsibilities during the course of the Business Relationship, Contract Party and its affiliates, agents, representatives, owners, directors, officers or employees have not and will not offer, or cause to be offered, anything of value to any private individual or company to obtain or retain business or secure an improper advantage.
- 2.3 None of the funds provided by the Company to Contract Party in connection with the Business Relationship have been or will be offered, promised or paid to any government official, private individual or company for any of the purposes described in Sections 2.1 and 2.2.
- 2.4 Facilitation Payments are strictly prohibited.
- 2.5 Upon request, Contract Party agrees to provide a certification of the Contract Party’s compliance with the requirements of this Code and all applicable anti-bribery laws, including such compliance by Contract Party’s affiliates, agents and representatives. A sample compliance certification is attached hereto as Appendix A.
- 2.6 Contract Party agrees to provide such anti-corruption education and training to its employees, agents and representatives, and the employees, agents and representatives of its affiliates, as the Company may from time to time authorize and direct in its sole discretion.
- 2.7 Contract Party agrees to maintain appropriate procedures for reporting to the Company any potential violations of this Code or any laws or regulations relating to bribery or corruption by Contract Party’s employees and by employees of Contract Party’s affiliates, agents and representatives.
- 2.8 No owner, partner, officer, director or employee of Contract Party, or of an affiliate of Contract Party, is or will become a government official or employee of a government entity during the term of the Business Relationship without prior notice to the Company. Any such employment shall constitute grounds for termination of the Business Relationship by the Company in its sole discretion.
- 2.9 No rights or obligations of, or services to be rendered by, Contract Party under the Business Relationship shall be assigned, transferred or subcontracted to any third party without the prior written consent of the Company.
- Anything of Value: This term includes cash or cash equivalents, gifts, services, employment offers, loans, travel expenses, entertainment, political contributions, charitable donations, subsidies, per diem payments, sponsorships, honoraria or provision of any other asset, even if nominal in value.
- Facilitation Payments: Facilitation or “grease” payments are small payments to a low-level government employee to expedite or secure performance of a routine, nondiscretionary governmental action, such as obtaining utility services or clearing customs. Facilitation payments are not permitted by WD-40 or any person or entity acting on its behalf.
- Government Official: This term means: (i) any officer or employee of a government or any department, agency or instrument of a government, full or part time, regardless of rank; (ii) any person acting in an official capacity for or on behalf of a government or any department, agency, or instrument of a government; (iii) any officer or employee of a company or business owned in whole or part by a government; (iv) any officer or employee of a public international organization such as the World Bank or United Nations; (v) any officer or employee of a political party or any person acting in an official capacity on behalf of a political party; and/or (vi) any candidate for political office.
- Government Entity: This term means the government of any nation, state, province, district, county, city, town or village; any board, agency or instrumentality of such government; or any entity owned or controlled by a government.
- Payments: This term refers to and includes any direct or indirect offers to pay or give, promises to pay or give, or any authorization for the payment or giving of Anything of Value.
- 3.1 do not and will not employ, engage or otherwise use any child labor in circumstances such that the tasks performed by any such child labor could reasonably be foreseen to cause either physical or emotional impairment to the development of such child;
- 3.2 do not and will not use forced labor in any form (prison, indentured, bonded or otherwise);
- 3.3 provides and will continue to provide a safe and healthy workplace, presenting no immediate hazards to its employees; any housing provided to employees is safe for habitation and employees are provided access to clean water, food, and emergency healthcare in the event of accidents or incidents at their place of work;
- 3.4 do not and will not discriminate against any employees on any ground (including race, religion, disability or gender);
- 3.5 do not and will not engage in or support the use of corporal punishment, mental, physical, sexual or verbal abuse and do not and will not use cruel or abusive disciplinary practices in the workplace;
- 3.6 pays and will continue to pay each employee at least the minimum wage for the country in which it operates and provides and will continue to provide each employee with all legally mandated benefits;
- 3.7 complies and will continue to comply with the laws on working hours and employment rights in the countries in which it operates; and
- 3.8 is respectful and will continue to be respectful of its employees’ right, if any, to join and form independent trade unions and freedom of association.
5. Right to Suspend Performance. Contract Party acknowledges and agrees that its compliance with this Code is part of the consideration for business transactions between the Company and Contract Party. Therefore, in the event the Company has reason to believe that a breach of any of the representations, warranties or agreements of Sections 1, 2 or 3 above has occurred or may occur, the Company may suspend any continued performance under the Business Relationship until such time as it has received confirmation to its satisfaction that no breach has occurred or will occur. The Company shall not be liable to Contract Party for any claim, losses or damages whatsoever related to its decision to suspend the Business Relationship in accordance with this provision.
6. Company Right to Audit Contract Party’s Business. Contract Party grants the Company the unrestricted right to take reasonable steps to verify Contract Party’s compliance with all applicable anti-bribery laws and the Code. In the event the Company has reason to believe that a breach of any of the representations, warranties or agreements of Sections 1, 2 or 3 above has occurred or may occur, the Company shall have the right to audit the business and activities of Contract Party and its affiliates in order to satisfy itself that no breach has occurred. Upon request by Contract Party, and at Contract Party’s expense, the Company shall select an independent third party to conduct such audit in order to certify to the Company that no breach has occurred or will occur. Contract Party shall fully cooperate in any audit or inquiry conducted by or on behalf of the Company.
7. Right of Termination. In the event the Company concludes, in its sole and absolute discretion, that Contract Party has failed to meet its obligations under Sections 1, 2 or 3 above, the Company shall have the right to terminate the Business Relationship with immediate effect and shall only make any remaining payments pursuant to the Business Relationship to the extent that, in the Company’s sole discretion, such payments will not violate any applicable law.
8. Indemnification. Contract Party agrees to indemnify the Company from and against all losses, claims, liabilities, damages, deficiencies, judgments, assessments, fines, settlements, costs, and expenses (including, but not limited to, legal costs) that the Company suffers or incurs arising from, or related to (i) any inaccuracy in or breach of your representations, warranties or agreements in Sections 1, 2 or 3; or (ii) any violation of the FCPA, U.K. Bribery Act, or any other applicable anti-bribery law by your or any of your agents or representatives.
9. Disclosure Rights. The Company may at any time disclose the existence and terms of this agreement, including Contract Party’s identity and compensation, to any person the Company determines has a legitimate need for this information, including any Government Entity, and current or potential customers, business partners or business associates of the Company.
10. No Assurance of Continued Business Relationship. Nothing herein shall represent an undertaking by the Company to continue the Business Relationship or otherwise to enter into continuing business transactions with Contract Party other than as may be agreed to separately in writing.
APPENDIX AAnnual Compliance Certification I, _________________________________________________________________, certify that:
- I am familiar with the requirements of the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”), including the rules and regulations promulgated thereunder, the U.K. Bribery Act, and the Anti-Corruption Laws of the jurisdictions to which I am subject (collectively, the “Anti-Corruption Laws”).
- I represent and certify that I have not offered, or caused to be offered, any money or other thing of value to any private individual, company, government official (including an employee of a government-owned or -controlled company or of a public international organization), political party official or employee of a political party, or candidate for public office, to obtain or retain business or secure an improper advantage.
- I represent and certify that I have not offered, or caused to be offered, any money or other thing of value to any person, while knowing or having reason to know that such person has offered or caused to be offered any money or other thing of value to a private individual, company, government official (including an employee of a government-owned or -controlled company or of a public international organization), political party or party official, or candidate for public office, to obtain or retain business or secure an improper advantage.
- I represent and certify that I have not otherwise violated, or caused WD-40 Company to violate, the WD-40 Company Global Compliance Policy and Code of Conduct (the “Code”) or any applicable Anti-Corruption Laws in connection with the Business Relationship (as defined in the Code).
- I represent and certify that I do not know and have no reason to believe that any consultant, agent, intermediary, or other person retained by me in connection with the Business Relationship has violated, or caused WD-40 Company to violate, the Code or any applicable Anti-Corruption Laws.
- I certify that I will, going forward, abide by the Code and any applicable Anti-Corruption Laws.
- I further confirm that should I learn of, or have reason to know of, any violations of the Code or any applicable Anti-Corruption Laws in connection with the Business Relationship, I will immediately advise WD-40 Company.
- To supply materials to WD-40 Company or to use materials in the production of WD-40 products or other supplied materials that are “DRC Conflict Free.” “DRC Conflict Free” materials are either (1) materials that do not contain any “conflict minerals” (3TG) that directly or indirectly finance armed groups through mining or mineral trading in the Democratic Republic of Congo or an adjoining country, or (2) materials that only contain 3TGs from recycled or scrap sources.
- To provide WD-40 Company with reasonably requested chain of custody documentation and origin reports relating to any 3TGs included in materials supplied to WD-40 Company or used in its production of WD-40 Company products or other supplied materials and otherwise to cooperate in any required audit thereof.
- To disclose to WD-40 Company and to cooperate with WD-40 Company if Seller experiences any difficulty in determining the origin of any 3TG minerals included in materials supplied to WD-40 Company or used in its production of WD-40 Company products or other supplied materials.
- To adopt policies and management systems with respect to the identification, sourcing and chain of custody documentation of conflict minerals and to require that their suppliers adopt similar policies and systems.
1 Conflict minerals are from “recycled or scrap sources” if they are from recycled metals, which are reclaimed end-user or post-consumer products, or scrap processed metals created during product manufacturing. Recycled metal includes excess, obsolete, defective and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of tin, tantalum, tungsten, and/or gold. Minerals partially processed, unprocessed, or a “bi-product” from another or are not included in the definition of recycled metal.