PURECYCLE TECHNOLOGIES, INC.
PURCHASE ORDER TERMS AND CONDITIONS
THIS ORDER INCLUDES AND IS SUBJECT TO THE FOLLOWING COVENANTS, TERMS AND CONDITIONS
1. ACCEPTANCE, REVOCATION – ACCEPTANCE OF THIS ORDER BY SELLER IS EXPRESSLY LIMITED TO THE EXACT TERMS AND CONDITIONS HEREIN. ANY OF SELLER’S TERMS AND CONDITIONS ARE DEEMED BY BUYER TO BE A MATERIAL ALTERATION AND ARE HEREBY REJECTED BY BUYER, AND WILL NOT BE BINDING UNLESS AGREED TO IN WRITING BY BUYER. COMMENCEMENT OF PERFORMANCE BY SELLER WILL CONSTITUTE SELLER’S ACCEPTANCE OF THESE PURCHASE ORDER TERMS AND CONDITIONS NOTWITHSTANDING ANY PROVISION IN SELLER’S COMMERCIAL FORMS OR OTHERWISE THAT SUCH COMMENCEMENT OF PERFORMANCE IS BEING MADE PURSUANT TO A CONDITIONAL ACCEPTANCE. BUYER RESERVES THE RIGHT TO REVOKE THIS ORDER AT ANY TIME BEFORE ACCEPTANCE.
2. ACKNOWLEDGMENT OF CERTIFICATION – The Seller hereby certifies that, when and to the extent required by law, it does not and will not maintain segregated facilities, nor permit its employees to work at locations where facilities are segregated on the basis of race, color, religion or national origin and that a similar certification will be required prior to the award of any nonexempt subcontracts. The Seller’s acceptance of this Order constitutes such certification.
3. SUPPLIER CODE OF CONDUCT – Seller hereby certifies that it has been provided and read the PureCycle Technologies, Inc. Supplier Code of Conduct and agrees to comply with the terms and requirements thereof. A copy of the Code is also available at www.purecycle.com/suppliercodeofconduct.
4. SELLER DIVERSITY – Buyer is committed to providing maximum practicable opportunities for small, disadvantaged, woman-owned, HUBZone, ethnic minority, veteran/service, and disabled business concerns that can support Buyer’s long-term objectives. To the extent legally permissible, Seller will use best commercial efforts to ensure the use of such diverse owned suppliers.. Seller will provide Buyer with an annual diverse spending report. Seller hereby agrees to carry out this policy in sourcing and awarding of subcontracts associated with these Goods and Services to the fullest extent consistent with efficient contract performance.
5. COMPLETE CHARGES – The extended prices and specifically identified extras (if any) appearing on the face of this Order, include all applicable charges for the goods described herein, including items such as taxes, transportation, packaging, packing and returnable containers (if any). No other charges are allowable except in accordance with the Changes Clause, Section 210.
6. SHIPPING, PACKING AND INVOICING – Seller shall comply with the shipping, packing, labeling and invoicing requirements, as may be issued by Buyer in this Order or in any notice of change Buyer issues to Seller after acceptance of this Order. No charges will be allowed for packing, crating or transportation unless stated in this Order. Seller must advise of any special shipping, handling, or storage requirements necessary to ensure safekeeping of goods. Failure to advise may result in additional costs to Seller. For shipments generated from and shipped to a Buyer address in North America, DAP, Owner’s Facility, per Incoterms® 2020 and Seller shall arrange all transportation and clearances and shall be responsible for the goods up to delivery at Buyer’s specified delivery address. For shipments originating outside North America and shipped to Buyer’s facility in the United States, DDP, Owner’s Facility, per Incoterms® 2020. Seller shall be responsible for arranging all transportation and export packing in accordance with the applicable packing requirements, and obtaining all freight, shipping, transportation and export clearances. Seller shall be responsible to ensure that packaging is in accordance with the ISPM-15 requirements. Seller shall be responsible for the goods up to delivery at the Buyer’s specified delivery address. Seller shall also be responsible for all export formalities, including but not limited to filing of the export declaration and Importer Security Filing Data Elements with the corresponding customs authority. Seller is responsible for all duties for equipment imported into the United States and delivered to the jobsite. It is the Seller’s responsibility to ensure that the description of the purchases in all the Seller’s documents matches exactly the description that appears in this Purchase Order. Freight charges are included in Seller’s scope and are a separate line item in the Bill of Materials. Seller shall list freight as a separate line item on invoice(s).
7. WARRANTY – By accepting this Order, Seller warrants that for the greater of (i) the period set forth on the face of this Order, or if no period is designated, then the longer of eighteen 18) months following the date of acceptance of the goods by Buyer, (ii) twelve 12) months following operational start up, to the extent the Goods are part of a larger manufacturing process,, (iii) the warranty period provided by applicable law, or (iii) the warranty period provided by the ultimate manufacturer of the goods to its customer, (the “Warranty Period”), the goods and services including packaging and containers to be furnished hereunder will (a) be free from defects in workmanship, design and materials, (b) conform to and perform in accordance with specifications and descriptions provided to Buyer or published by Seller, and (c) be fit for Buyer’s intended use. For services provided by Seller, Seller further warrants that the work or services will be performed in a professional and workmanlike manner. In the event of any breach of the foregoing warranty during the Warranty Period, Seller shall promptly, without additional charge to Buyer and including without limitation costs of removal, packing, transportation and reinstallation, repair or replace (at Buyer’s option) the goods or re-perform the services as necessary in order to meet its performance obligations hereunder. If Buyer makes a warranty claim and Seller repairs the goods, Seller shall provide substitute goods during the repair period. Any repairs will be made or new or substitute goods will be provided immediately to mitigate any downtime or reduced production capacity. Any substitute goods shall be of equal or greater value and usefulness to Buyer. Seller further agrees to assign to Buyer any and all warranties provided to Seller by third parties related to any goods not manufactured by Seller, and Seller shall reasonably assist Buyer with any warranty claims under such third party warranties. It shall be understood that any and all warranties provided by such third party warranties shall be in addition to, and not in lieu if or less than, those warranties provided directly by Seller under the Purchase Order. Or these terms and conditions document. Seller will at any time be chargeable for repairs made by Buyer to correct such failure to meet the warranty herein when Seller has been given notice of such failure and thereafter has failed to take prompt and effective action to correct the failure in accordance with the foregoing.
All warranties shall survive inspection, tests, acceptance of, and payment for the goods and shall run to Buyer, its successors, assigns and customers. Buyer shall have the benefit of all warranties implied at law and all express warranties made by Seller. Seller further warrants that (i) title to any goods conveyed pursuant to this Order shall be good and its transfer rightful, and that the goods and all rights thereto shall be transferred and delivered free and clear of all liens, claims, and encumbrances; (ii) the goods and their manufacture, production, sale and operation will be in compliance with all applicable laws, rules, and regulations and any services performed by Seller will be in compliance with all applicable laws, rules, and regulations including those pertaining to the protection of the environment, health and safety; and (iii) no services performed by Seller will in any way infringe upon or violate any intellectual property or other rights of any third party.
8. INSPECTION – Upon delivery, Buyer shall have a reasonable time within which to inspect the goods before accepting or paying for them. Seller is responsible for monitoring any sub-suppliers and/or subcontractors for major items and services to ensure that they are meeting the requirements of the Purchase Order. Buyer reserves the right to contact Seller’s sub-suppliers to determine the status of work being performed by the sub-supplier.
9. TITLE; RISK OF LOSS – Risk and title to the goods shall pass to the Buyer only upon delivery to and acceptance by Buyer. Until Buyer has received and accepted the goods the Seller shall bear all risk of loss or damage to the goods. Rejected goods will be held by Buyer at Seller’s risk or may be returned, and at Seller’s direction shall be returned to Seller with all transportation and related charges to be paid by Seller. If Buyer makes progress payments to Seller under this Purchase Order, title to the goods ordered shall pass to Buyer at the time that Seller identifies the goods to this Purchase Order. Seller shall clearly identify the goods as property of Buyer by visible marking or tagging, and Buyer shall have the right, at Buyer’s option, to inspect and verify that said goods have been identified as Buyer’s property.
10. COMPLIANCE WITH LAWS – Seller warrants that all work performed and goods delivered pursuant hereto will be performed, manufactured, produced, sold, invoiced, packaged, labeled, shipped and, if required, registered in accordance with, and in all respects will conform to all applicable laws. Seller certifies that the goods conform to all applicable consumer product safety standards (if any) under applicable law and that the goods are not a misbranded hazardous substance or a banned hazardous substance or product.
11. QUALITY CONTROL – Seller shall maintain effective quality control inspection and testing to assure that goods will consistently conform to Buyer’s specification and shall furnish evidence of quality and statistical process control according to Buyer’s Supplier Quality Requirements. Seller shall notify Buyer in writing prior to changing in any way the Seller’s specifications used in production of supplies ordered by Buyer herein. Seller shall not modify in any way Buyer’s specifications used in production of supplies ordered by Buyer, without the prior written consent of Buyer.
12. REJECTION OF GOODS – BUYER’S REMEDIES – In addition to any other remedies or rights afforded by law, Buyer may reject or revoke its acceptance of any goods that do not fully meet the warranties and other terms and conditions of this Order, including the rejection of a lot or shipment that does not meet the acceptable quality level specified, regardless of the extent of deviation from the said warranties and other terms and conditions, and regardless of whether the Buyer has accepted the goods or part of them. In such event, Buyer may elect to (a) return the rejected goods to Seller at Seller’s expense, or (b) scrap the goods and require Seller, at Buyer’s election, either to replace the goods forthwith, f.o.b. Buyer’s plant destination without cost to Buyer, or issue full credit for the rejected goods, provided, however, Buyer shall have the right to retain and correct or otherwise use unacceptable goods, when needed to maintain production. Seller shall reimburse Buyer for all costs and expenses incurred in connection with returns, and corrective and remedial action, including unpacking, examining, sorting, testing, repacking and reshipping, in addition, Buyer shall have the right to preserve and keep a sample of the goods tendered for the purpose of having evidence of the kind and quality of the tendered goods.
13. RESPONSIBILITY FOR PRODUCT HAZARDS – In the event that information is received which reasonably supports the conclusion that the goods are a product hazard under applicable law, Seller will, in addition to all other obligations hereunder, have the duty to rework or replace at Seller’s expense all such goods at anytime sold to Buyer, (whether in possession of Buyer, its customers, or others) and to pay all costs of Buyer attributable to such product hazard, including, in particular, any damages which Buyer may have to pay to indemnify any third party due to such product hazard.
14. INDEMNIFICATION – Seller shall exonerate, indemnify and hold Buyer, its agents, employees, contractors and customers harmless against all claims, demands, suits, liabilities, prosecutions, penalties, settlements, losses, damages, costs and expenses, including attorney’s fees, in respect of matters and allegations that the goods fail to meet applicable specifications and quality requirements, are defective, unfit, unsafe, or infringe any patent, trademark, or other property rights, or that the goods do not meet applicable laws or regulations, or allegations of acts or omissions of Seller, its employees, sub-contractors or agents that result in bodily injury, death or property damage. Such indemnity will survive the termination of this Order. At Buyer’s request, Seller shall defend such claims or suits at Seller’s expense by reputable counsel satisfactory to Buyer.
15. SELLER’S LIABILITY INSURANCE – Seller shall, at its expense, maintain liability insurance, with a broad form vendor’s endorsement naming Buyer as an additional insured providing liability coverage for products and goods sold hereunder, and operations of Seller, with an endorsement covering liabilities assumed under contract. This insurance, which shall be carried with a reputable insurer satisfactory to Buyer, shall provide coverage for bodily injury of not less than $2,000,000 per person/occurrence and damage to property of not less than $1,000,000 per occurrence. A certificate of insurance shall be provided to Buyer requiring the insurer to name Buyer as an additional insured on such policy and give Buyer not less than thirty (30) days written notice of cancellation or modification of the insurance coverage. To the extent Seller will require access to any of Buyer’s locations in connections with delivering or providing the Good and Services under the Purchase Order, Seller further agrees to maintain Automobile Insurance of at least $500,000, and Workers Compensation and Employer’s Liability Insurance in an amount not less than one million dollars ($1,000,000.00); Seller shall comply with applicable law with respect to workers compensation and employer’s liability requirements and other similar requirements for wherever the work is performed and shall procure and maintain workers compensation and employer’s liability policies in accordance with applicable law. Seller shall maintain or self-insure, and shall cause all subcontractors to maintain, property insurance covering all equipment (whether owned, rented, or borrowed) of Seller and its subcontractors. It is understood that this coverage shall not be included under a PureCycle builders risk policy. This insurance shall also cover materials stored by Seller or subcontractors off of PureCycle’s property or in transit. Consistent with this coverage requirement, Seller shall assume all risk of loss and damage to its property, equipment, tools, materials, and field offices (including all contents); and of Seller’s employee’s tools and effects.
All insurance policies provided by Seller and any of its subcontractors will provide a waiver of subrogation in favor of Buyer providing that each insurer shall waive its rights of recovery, under subrogation or otherwise, against Buyer. To the extent of the risks and liabilities assumed Purchase Order, Seller waives, and shall require all of its subcontractors to waive in their respective subcontracts, any and all claims, damages, losses, costs, and expenses against Buyer to the extent such claims, damages, losses, costs and expenses are covered by insurance procured by Seller or any of its subcontractors pursuant to Purchase Order
16. TOOLING, PROPRIETARY DATA – All tools, molds and similar items (tooling) needed in the manufacture of the goods shall be furnished by Seller at its expense unless otherwise specified in this Order. In the event that tooling or written data identified as proprietary is furnished by, or at the expense of Buyer, such tooling and proprietary data shall be and remain the property of Buyer, held in confidence, and be identified by a property tag and on Seller’s records, as Buyer’s property, and shall be used only for performance of orders from Buyer, unless otherwise permitted by Buyer’s prior written consent. Any tooling furnished by, or at the expense of Buyer, shall be in Seller’s possession as a bailment from Buyer and Seller acknowledges that it is a bailee-at-will of the tooling. Seller shall have no property or other rights in such tooling and shall have no power to transfer any rights or grant any security interest in the tooling to a third party. Seller waives (a) any lien that it might have or otherwise be able to assert against the tooling, and (b) any objection to Buyer’s repossession and removal of the tooling owned by Buyer for any or no reason. Seller shall indemnify and hold Buyer, its agents and employees, harmless against all claims, demands, liabilities, obligations, costs and expenses based upon or arising out of the use, storage or handling of the tooling until returned to Buyer’s possession.
17. SERVICES AT BUYER’S LOCATION – If labor or services in connection with this Order are performed at any location of Buyer, Seller agrees to indemnify and hold Buyer harmless from and against all claims, demands, liabilities, obligations, losses, damages, costs and expenses, including attorney’s fees, arising out of or related to the labor and services to be provided, excepting only the sole gross negligence of the Buyer, its employees or agents.
18. DELIVERY – Time is of the essence for the delivery of goods under this Order, and if delivery of any goods or rendering of services is not completed in accordance with these terms and conditions by the time specified, Buyer reserves the right without liability, in addition to other rights and remedies, to terminate this Order, and to obtain the remaining balance of the goods or services (or substitute items) elsewhere with Seller remaining liable for all resulting losses and damages. Unless otherwise provided herein, all goods shall be sold f.o.b. destination regardless of which party pays transportation costs.
19. PRICES – Buyer shall not be billed at prices higher than stated in this Order unless authorized by a purchase order change issued and signed by Buyer. Seller represents that the prices to be charged for items and services hereunder is to be the lowest price (after consideration of all discounts, rebates, and allowances) charged by the Seller to other comparable buyers, and that the prices will comply with applicable government laws and regulations. Seller agrees that any price reduction made subsequent to the date of this Order on goods of the kind ordered will be applicable to this Order.
20. REPLACEMENT PARTS – Seller shall, in the case of goods requiring servicing, stock replacement parts or maintain a manufacturing capability sufficient to meet Buyer’s needs for a period of not less than seven (7) years after the last shipment of any of the goods. Replacement parts will be made available to Buyer at competitive prices not exceeding those charged to other comparable customers of Seller. Buyer reserves the right to purchase spare parts against Seller’s initial quote that becomes part of this Purchase Order for a period of twenty-four (24) months after final shipment of Purchase Order equipment.
21. CHANGES – Buyer may, at any time, by written notice to Seller, make changes within the general scope of this Order, including changes in drawings, designs, specifications, shipping instructions, method of shipping or packing, place of delivery, quantity and delivery schedules. If a change increases or decreases the cost of or time required for performance hereunder, an equitable adjustment in the price or delivery dates or both, will be made and this Order shall be modified by both Seller and Buyer in writing accordingly. A claim for equitable adjustment by either party shall be made to the other in writing with adequate supporting documentation within five (5) days from the date of the change notice, or such claim for an equitable adjustment is unconditionally waived. Seller shall diligently continue performance of this Order, as changed, pending agreement on the amount of an equitable adjustment, and nothing contained herein shall relieve or excuse Seller from proceeding without delay in performing this Order as changed. The Buyer’s engineering, technical and other personnel may on occasion render assistance, exchange information or give advice to Seller’s personnel concerning the supplies or services furnished hereunder. However, such assistance, exchange or advice shall not constitute either a change under this paragraph or a waiver of the Seller’s existing obligations. In order to be valid and binding upon Buyer, any change, waiver or amendment to this Order must be in writing and signed by Buyer’s authorized representative.
22. TERMINATION FOR CONVENIENCE – Buyer may, at any time, terminate without cause, this Order in whole or in part by notice to Seller. Seller shall thereupon immediately stop work on this Order or the terminated portion thereof and notify any subcontractors to do likewise. Allowance in such case will be made for normal and reasonable expenses incurred by Seller prior to receipt of notice of cancellation, but Buyer will not be liable for any charges or expenses incurred by Seller in advance of the normal or reasonable lead time necessary to meet scheduled delivery dates nor for any expenses, charges or liability incurred subsequent to the giving of notice of cancellation. Seller shall submit any claim to Buyer, within five (5) days after date of termination, or such claim shall be unconditionally waived.
23. TERMINATION FOR DEFAULT – In addition to any other remedies or rights afforded by law, Buyer may terminate in whole or in part of this Order for default if (a) Seller fails to perform or delays in performing any part or provision of this Order, or (b) Seller fails to make progress so as to endanger performance of this Order. For default under (b) only, Buyer shall give Seller notice of such failure and Seller must cure such default within five (5) days from receipt of such notice, failing which such termination shall become effective. Buyer shall have no obligations to Seller in respect of the terminated portion of this Order and Buyer’s liability shall be limited to payment for the delivered portion of this Order at the rate specified on the face hereof (reflecting quantity prices as though this Order had gone to full completion). If, as a result of default in performance by Seller, this Order is terminated in whole or in part, and Buyer decides at its sole discretion to procure any of the specified supplies or services elsewhere, then Seller will be liable for any re-procurement or purchase which exceeds the amount which would have been due if Seller had satisfactorily completed this Order. These remedies shall be cumulative and additional to any other or further remedies provided in law or in equity.
24. NO ASSIGNMENT – Seller may not assign this Order or delegate the performance of any duties hereunder without Buyer’s prior written consent.
25. REMEDIES: SURVIVAL – The rights and remedies provided for Buyer herein shall be cumulative and in addition to all other rights and remedies provided by law or equity. Seller’s covenants, representations and warranties hereunder shall survive any delivery, inspection, payment or acceptance, and any completion, termination or cancellation of this Order.
26. NONCONFORMING GOODS – Seller shall not substitute nonconforming goods or backorder such goods without first obtaining Buyer’s written consent thereto.
27. NONWAIVER: ENTIRE AGREEMENT- This Order, as the same may be amended or modified in writing, and any documents referred to or incorporated herein, supersede all prior understandings, transactions and communications, or writings with respect to the matters referred to herein. No delay or failure on the part of Buyer in exercising any rights under this Order, and no partial or single exercise thereof, shall constitute a waiver of such rights or any other rights thereunder. None of the terms and conditions contained in this Order may be added to, modified, superseded or otherwise altered except by a written instrument signed by the authorized representative of Seller and Buyer, respectively. Except for such written instruments, this Order constitutes the entire agreement between the parties in respect to the matters referred to herein.
28. APPLICABLE LAWS AND LANGUAGES; ATTORNEYS FEES. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of [Florida/Ohio] or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of [Florida/Ohio]. Any legal suit, action, or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in and exclusively resolved by the federal courts of the United States or the courts of the State of [Florida/Ohio], in each case located in the city of [Orlando, Florida/Cincinnati, Ohio], and the breaching Party irrevocably submits to the exclusive jurisdiction of [Florida/Ohio] in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice, or other document by mail shall be effective service of process for any suit, action, or other proceeding brought in any such court. Recipient acknowledges and agrees that any breach of this Agreement may cause irreparable harm and injury to Buyer or Seller, as applicable, for which money damages may not be an inadequate remedy and that, in addition to remedies at law, If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and costs from the other party.
29. FORCE MAJEURE – Failure of Seller to make, or Buyer to take, all or any part of any shipment hereunder, if such failure is due to acts of God, war, riot, insurrection, labor difficulties, breakdown or damage to Seller’s plant facilities or Buyer’s receiving facilities, embargoes, acts of terrorism, shortages of any raw materials or energy, shortage of transportation equipment, compliance with any law or regulation or order of any public authority and any other cause either similar or dissimilar which are unforeseeable and unavoidable and the occurrence of which is beyond the control of the parties so failing (the “Force Majeure Event”), shall not subject such party to any liability to the other party, and in such event, at the request of either party, the total quantity of goods to be shipped will be reduced by the quantity not shipped due to such Force Majeure Event; provided, however, that if Seller is unable to meet the delivery schedule provided by Buyer due to a Force Majeure Event, Buyer reserves the right to refuse shipments on any other schedule unless that schedule has been submitted to and approved by Buyer in writing after the occurrence of the Force Majeure Event. For purposes of this provisions, any delays caused by, or related to, COVID 19, including any governmental quarantines or business restrictions, shall not be considered a Force Majeure event
30. MINIMUM ORDER REQUIREMENTS – Except as specifically set forth in this Order, or any sales contract between Buyer and Seller, Buyer is under no obligation to purchase any specific or minimum quantities of goods, and Buyer may make purchases at Buyer’s sole discretion.
31. SPECIFICATIONS AND QUALITY REQUIREMENTS – If Exhibit A is attached hereto, all goods purchased by Buyer hereunder shall meet the Specifications and Quality Requirements set forth in Exhibit A,and incorporated by reference herein.
32. SET OFF RIGHTS – Any sums due or to become due to the Seller are subject to all claims and defenses of Buyer, whether arising from this or any other transaction, and Buyer may set off and deduct against such sums all present and future indebtedness of Seller to Buyer.
33. INTEREST/LATE CHARGES – Buyer is not liable to Seller for any interest or late charges.
34. RIGHTS OF THIRD PARTIES – A person or entity who is not the Seller or the Buyer shall have no rights under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any term of this Order, regardless of whether such person or entity has been identified by name, as a member of a class or as answering a particular description.
35. CONFIDENTIALITY – “Confidential Information” shall mean confidential or proprietary information of Buyer, including, without limitation: (a) processes, technical information, data, business methods and techniques, methods of presentation, programs and other materials used or to be used by Buyer in manufacturing or selling its products and services (b) customer names and customer information, (c) pricing information, (d) computer technology, source code, object code, programs and data, whether online, in hard copy or on disk or other medium, whether released or unreleased, (e) financial information, and (h) all other confidential or proprietary information about Buyer’s business, whether in tangible or intangible form. Confidential Information shall not include the following: Seller acknowledges that the Confidential Information constitutes a valuable asset of, and is proprietary to, Buyer. Seller agrees to be bound by the confidentiality provisions herein and shall use the Confidential Information solely in connection with the supply of Goods and Services to Buyer. Seller shall only disclose Confidential Information to its employees, agents and subcontractors who need to know Confidential Information solely to provide the Goods or Services. Seller agrees to advise such employees, agents and subcontractors of the obligations of confidentiality contained herein and to ensure their agreement to be bound thereby. Seller shall remain liable for any breach of the confidentiality provisions contained herein. Seller shall not otherwise use the Confidential Information for its own benefit or for the benefit of any third party. Seller agrees to promptly notify Buyer of any unauthorized disclosure of or access to the Confidential Information of which Seller becomes aware. Nothing contained in this Agreement is to be construed as granting or conferring any rights, by license or otherwise, in any Confidential Information disclosed by Buyer. Seller acknowledges and agrees that any disclosure or unauthorized use of the Confidential Information shall cause irreparable harm and loss to Buyer. If Seller is unsure whether any information is Confidential Information, Seller agrees to treat such information as Confidential Information unless Seller is instructed by Buyer to the contrary. Notwithstanding the time limitations otherwise contained herein, trade secret information will be treated as Confidential Information for as long as it retains trade secret status.
36. OWNERSHIP OF WORK PRODUCT AND COPYRIGHT COMPLIANCE – Seller acknowledges that all business plans, business models, methods, processes, designs, and all other items prepared by or for PureCycle in connection with its Services or any Statement of Work, including any such items prepared by Seller, shall be considered work for hire (the “Work Product”), and shall be owned solely by PureCycle. PureCycle shall be deemed the original author of such Work Product. Neither Seller, nor any other person, firm, corporation, or other entity shall have the right to use the Work Product for any purpose without the prior written consent of PureCycle. Seller further agrees that it will not use, for any purpose other than the performance of services for PureCycle, the Work Product or any product, design or other item owned or licensed by a customer of PureCycle Technologies, Inc., or any subsidiary or affiliate thereof (“Customer Product”).
37. OWNERSHIP AND USE OF INVENTIONS – The Seller will disclose promptly and fully in writing to an authorized representative of PureCycle all information, discoveries, works of authorship, designs, software, and inventions, whether or not patentable, conceived or reduced to practice by the Seller as a result of the Services or any Statement of Work (hereinafter referred to as the “Inventions”). To the extent available under applicable law, all such works of authorship and any software developed hereunder shall be considered a work made for hire. To the extent any works of authorship or software may not be considered a work made for hire, Seller agrees to assign and does hereby assign all such works to PureCycle. All Inventions will be the exclusive property of PureCycle. Accordingly, the Seller will assign outright to PureCycle the entire right, title and interest, worldwide, to Inventions, without payment other than the fees provided for herein. The Seller further will execute any and all documents which PureCycle determines are necessary or convenient to fully implement its proprietary rights in the Inventions, such as obtaining patents, and to fully cooperate in the prosecution of such proprietary rights, but at no expense to the Seller. PureCycle will have the above-mentioned documents drafted, prosecuted and maintained at its own expense. The Seller warrants that it has appropriate ownership rights in the Inventions to carry out its obligations under this article.
To the extent applicable, the following provisions shall also form a part of the Terms and Conditions applicable to the Purchase Order
38. ACCEPTANCE: Buyer shall be entitled to evaluate and test the goods for the purposes of determining whether the goods function according to their specifications and descriptions, and ensuring that the goods can be effectively utilized in Buyer’s facility for their intended use. If the goods satisfactorily pass the acceptance testing, the goods shall be accepted by Buyer by written notice to Seller. If the goods fail to pass acceptance testing, Seller shall promptly correct the deficiency or deficiencies at its expense, and the applicable phase of acceptance testing will be repeated until all phases are satisfactorily passed. If all phases of acceptance testing are not satisfactorily completed within a reasonable time after installation, Buyer may at its option terminate its obligations under this Order and shall have the right to return the goods, without penalty and with no further obligation, and be entitled to a refund of any amounts paid for the goods and any services rendered by Seller in connection with the goods. Under no circumstances will Buyer be deemed to have accepted the goods and Buyer will continue to have the right to reject the goods until such time as Buyer has notified Seller in writing that the goods have successfully completed the final acceptance test to be run at Buyer’s facility. If requested by Buyer, Seller will provide pre-acceptance testing for Buyer at Seller’s facility, at no cost to Buyer. Buyer’s acceptance of the goods under this Clause shall not deprive Buyer of any right implied by law or expressly granted under this Order with regard to defect in the accepted goods, and Buyer retains the right to reject, or revoke its acceptance of, any goods that fail to pass acceptance testing.
39. PAYMENT TERMS – Buyer may withhold ten percent (10%) of the price of goods (or such higher amount as may be specified in this Order) until the goods have successfully completed final qualification and acceptance testing at Buyer’s facility. Buyer may also withhold payment for any goods or services until Buyer receives evidence, in such form and detail as Buyer requires, of the absence of any liens, encumbrances and claims on the goods or services.
40. INSTALLATION/DOCUMENTATION – Seller shall provide Buyer with all relevant documentation for the goods, including operations and maintenance manuals, preventative maintenance procedures and lists of recommended parts; all of which shall be written in English and provided in the quantity requested by Buyer for the goods. Any installation services required in connection with the goods will be provided by Seller at no additional cost to Buyer, unless otherwise set forth in writing on the face of this Order. Buyer and Seller shall agree in writing on the schedule for such installation. If Buyer will be installing the goods, Seller will provide Buyer with all drawings and instructions on how to install the goods. Such documentation, drawings and instructions shall be provided electronically and in hard copy.
41. SAFETY – Seller will comply and will require its employees, agents, representatives and subSellers who are performing work or services on Buyer’s premises to comply with Buyer’s safety policies, industry standards and all occupational health and safety legislation and regulations. Seller shall, at its own expense, defend, indemnify, and hold harmless Buyer from and against any and all claims, liabilities, losses, or damages (including reasonable attorneys’ fees) arising in connection with any work or services performed by Seller or its employees, agents, representatives and subSellers on Buyer’s premises, which indemnity will survive the termination of this Order. Seller further warrants that it will, whenever possible, use commercially available parts of the highest industry quality and the goods will be equipped with approved or appropriate fail-safe safeguarding systems.
42. LIENS – Seller shall pay and satisfy all claims for labor and material employed or used in or with the goods and any services performed by Seller. Seller agrees to indemnify and save Buyer harmless from all liens and encumbrances of any kind pertaining to the services or the goods, and Seller shall furnish Buyer, at Buyer’s request, proof that there are no unsatisfied liens, debts or encumbrances pertaining thereto. In the event a lien or encumbrance should attach, Buyer, without prejudice to its rights under this section, shall have the right, at Seller’s expense, to take all steps necessary to remove such lien and encumbrance, including payment of the underlying debt. Where permitted by law, Seller waives any lien, encumbrance or other rights that Seller might otherwise have on or in any of the goods for work performed on, or utilizing, such goods or otherwise.
43. SOFTWARE – Seller grants to Buyer a perpetual, irrevocable, paid-up, non-exclusive license to use any software (including source codes), computer programs or PLC programs incorporated into or used in connection with the goods. Buyer shall be provided with all information necessary to access the software and programs. Such software or programs shall be used by Buyer only for the purpose of operating the goods. Buyer may not modify, adapt, translate, reverse engineer, decompile, disassemble or create any derivative work based upon such software, except and only to the extent that such activity is expressly agreed to by Seller or permitted by applicable laws. Buyer shall acquire no ownership rights in the software or programs. Seller shall indemnify and hold Buyer, its employees, agents, Sellers and customers harmless against all claims, demands, suits, liabilities, prosecutions, penalties, settlements, losses, damages, costs and expenses, including attorney’s fees, in respect to matters and allegations that the use by any afore-mentioned parties of such granted license infringes any patent, trademark, copyright. or other property rights. Such indemnity will survive the termination of this Order. At Buyer’s request, Seller shall defend such claims or suits at Seller’s expense by reputable counsel satisfactory to Buyer.