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As of May 10, 2018
These MANUFACTURER TERMS (these “Terms”) shall be effective for each purchase order (each, a “Purchase Order”) issued by L’Objet USA, LLC, L’Objet IOM Limited, and/or any affiliate of either of the foregoing (each in its capacity as an issuer of a Purchase Order shall be referred to herein as “L’Objet”) from and after the date first above-written and shall be binding upon any producer, manufacturer or supplier (a “Manufacturer”) of goods or products for, or that renders services to, L’Objet (“Products”.)
SUPPLY OF PRODUCTS. Manufacturer shall produce and supply L’Objet with the Products set forth on each Purchase Order and shall produce the Products in accordance with the specifications established by L’Objet at any time and from time to time. (Hereinafter, the Purchase Order, specifications issued by L’Objet in connection with Products within such Purchase Order and these Terms shall be referred to as this “Agreement.”) In each instance where Manufacturer has not previously supplied L’Objet with identical Products, Manufacturer shall provide L’Objet with a sample of each Product in the Purchase Order at Manufacturer’s sole expense, and Manufacturer shall not commence production of such Products until L’Objet has approved such samples in writing. Manufacturer shall comply with the Code of Conduct set forth on Schedule 1 hereto.
GRANT OF LICENSE. L’Objet represents and warrants to Manufacturer that all trademarks, trade names, trade labels, trade dress, packaging and other intellectual property (collectively, “Intellectual Property”) supplied by L’Objet to Manufacturer for each Product do not infringe upon or otherwise violate the intellectual property rights of any third party. L’Objet hereby grants to Manufacturer a limited, non-transferrable and non-exclusive license to use the Intellectual Property for the sole purpose of manufacturing the Products in accordance with this Agreement. Nothing in this Agreement shall give Manufacturer any right, title or interest in or to the Intellectual Property, except the limited license expressly provided above, and all such rights shall remain the sole and exclusive property of L’Objet. In addition, Manufacturer shall not adopt any trademark, trade name, trade dress, labeling or packaging which is deceptively similar to, or likely to cause confusion with, the Intellectual Property and/or the Products. The foregoing license granted by L’Objet is non-exclusive, and L’Objet will not be limited in any manner to engage in other manufacturing or distribution activities or to appointment of any other manufacturers, dealers, distributors, value-added reseller or other licensees or agents.
OWNERSHIP OF PRODUCTS. L’Objet owns all rights to the Products produced by Manufacturer. Manufacturer’s sale, resale or distribution to any entity other than L’Objet, including without limitation distribution to retailers or other distributors or sub-distributors, is expressly prohibited unless approved in advance in writing by L’Objet.
PRODUCT ACCEPTANCE. L’Objet will inspect and test each of the Products delivered by Manufacturer by the later of (a) ninety (90) days after receipt of such Products by L’Objet, or (b) sixty (60) days after discovery by L’Objet of an actual or potential defect in the Products. If any Product does not comply with the specification therefor and otherwise conform to the provisions of this Agreement, L’Objet may reject the non-conforming Products. L’Objet shall have no obligation to pay for any rejected products, and to the extent L’Objet has theretofore paid Manufacturer in whole or part for such Products, Manufacturer shall refund such payment within thirty (30) days after demand therefor by L’Objet to Manufacturer.
CONFIDENTIALITY. In the course of manufacturing and supplying the Product, Manufacturer may be exposed to confidential or proprietary information of L’Objet, including designs, drawings, materials, manufacture specifications, trade secrets, business and financial information and other confidential information (collectively, “Confidential Information”). Manufacturer will keep confidential all Confidential Information, including details of the manufacturing of Products, and will manufacture the Products in accordance with strict security procedures. For a period of thirty (30) years after the date of the Purchase Order, Manufacturer will refrain from disclosing any Confidential Information, except for the strict purposes or activities authorized by L’Objet in writing and shall use all reasonable efforts to maintain the privacy of the Confidential information in its possession or control. In the event of a conflict between these terms and the Purchase Order shall govern. In the event of any conflict between these terms and the specifications for the Products, the specifications shall govern.
PROHIBITED ACTS. Neither Manufacturer nor any of its agents, representatives, affiliates, or subcontractors of Manufacturer (each, a “Manufacturer Party”) will have the right to copy, manufacture or distribute any Product without the express prior written approval of L’Objet. If any Manufacturer Party copies, manufactures or distributes any Product without a license and prior written approval of L’Objet, such Manufacturer Party shall be liable to L’Objet for any costs or loss in sales, revenue or profits by L’Objet, plus all applicable attorneys’ fees and costs incurred in investigating and prosecuting any action against such Manufacturer Party. Manufacturer shall bind contractually any person or entity to which Manufacturer discloses or provides knowledge of, or access to, any Product to maintain such information in strict confidence, and shall further make any offending party liable to L’Objet for any losses arising from failure to maintain such confidence.
INSPECTION OF BOOKS. L’Objet will have the right, upon reasonable request, to audit and review the books and records of Manufacturer to verify the number and quality of the Products being manufactured. Any such audit will be conducted at Manufacturer’s expense and at such times and in such a manner as to not unreasonably interfere with Manufacturer’s normal operations. Manufacturer shall maintain all such books and records for a period of three (3) years after shipment of Products.
ASSIGNMENT. Manufacturer agrees that its rights and obligations under this Agreement may not be a transferred or assigned without the prior written consent of L’Objet. L’Objet may assign its rights and delegate its obligations under any Purchase Order without Manufacturer’s consent.
DEPOSIT: Any initial deposit to be paid by L’Objet to Manufacturer in respect of a Purchase Order shall be set forth on the face of such Purchase Order. If L’Objet shall pay an initial deposit, Manufacturer warrants, represents and agrees that such deposit shall be used solely for the procurement of materials and payment for services used by Manufacturer in the fulfillment of such Purchase Order, and for no other purpose whatsoever. L’Objet may require at any time, and from time to time, that Manufacture provide L’Objet a full and complete accounting of such deposit and shall demonstrate that such deposit has been used in accordance with this paragraph or remains with the Manufacturer in immediately available funds. L’Objet will deduct in full any initial deposit from the amount due for the first completed shipments. L’Objet provide Manufacturer by email a confirmation of the payment.
LEAD TIME. Unless L’Objet shall provide differently on the face of the Purchase Order, (a) Manufacturer shall manufacture each Product that it has not previously manufactured for L’Objet in not more than 120 days after the date of the Purchase Order, and (b) Manufacturer shall manufacture any product that it has previously manufactured for L’Objet in not more than 90 days after the date of the Purchase Order.
FINAL PAYMENT. Unless the Purchase Order shall provide for different dates of payment, L’Objet shall pay Manufacturer the remaining balance due for any Purchase Order upon delivery the goods, together with a proper form of Bill of Lading, to the coordinator selected by L’Objet (the “Forwarder”). In addition to the Bill of Lading, at the time of delivery, Manufacturer will provide all customs clearance documents, including without limitation invoice, packing list, and all other necessary documents, to the Forwarder at the time of delivery.
SHIPMENT INCREMENTS: To the greatest extent practicable, Manufacturer will ship all goods in full containers. In the event of a container Manufacturer ships with less than a full load, Manufacturer will coordinate the shipment with the Forwarder to consolidate multiple L’Objet shipments in a single container. Manufacturer will make all shipments larger than 15 cubic meters in a full container load.
PENALTY FOR LATE SHIPPING: If Manufacturer shall fail to ship in accordance herewith, L’Objet shall deduct the greater of (a) five percent (5%) from the invoice balance for each week the goods are late beginning on the tenth day after the required shipment date, or (b) the cost for shipment to be made by air freight.
PURCHASE ORDER MODIFICATION: This Agreement may be modified, amended or supplemented with the prior written consent of each of Manufacturer and L’Objet.
SUCCESSORS AND ASSIGNS. The terms and conditions applicable to a Purchase Order shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, administrators, executors, successors and permitted assigns.
GOVERNING LAW. Any dispute arising with respect to any Purchase Order shall be governed by and construed in accordance with the laws of the State of Texas, United States, without regard to conflict of law provisions.
DISPUTES. The parties shall submit to mediation any dispute arising in respect of this Agreement. If such dispute is not resolved in mediation, then the parties shall submit such dispute to binding arbitration conducted in accordance with the rules of the American Arbitration Association. Any such arbitration shall be held in Dallas County, Texas, United States.
SEVERABILITY. If any term of this Agreement shall be held invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected thereby and shall continue to be valid, legal and enforceable in accordance herewith.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the parties with respect to the subject matter of such Purchase Order. If Manufacturer shall provide an acceptance of a Purchase Order which contains terms and conditions that differ from or supplement the provisions of this Agreement, such differing terms shall only be binding upon L’Objet if L’Objet shall consent in writing to such differing terms.
SCHEDULE 1
CODE OF CONDUCT
Child Labor
Manufacturer will not use child labor. The term “child” refers to a person younger than age 15 (or 14 where local law allows) or, if higher, the local legal minimum age for employment or the age for completing compulsory education. Manufacturers employing young persons who do not fall within the definition of “children” will also comply with any laws and regulations applicable to such persons.
Involuntary Labor
Manufacturers will not use any forced or involuntary labor, whether prison, bonded, indentured or otherwise.
Coercion and Harassment
Manufacturers will treat each employee with dignity and respect, and will not use corporal punishment, threats of violence or other forms of physical, sexual, psychological or verbal harassment or abuse.
Nondiscrimination
Manufacturers will not discriminate in hiring and employment practices, including salary, benefits, advancement, discipline, termination or retirement, on the basis of race, religion, age, nationality, social or ethnic origin, sexual orientation, gender, gender identity, political opinion or disability.
Association
Manufacturers will respect the rights of employees to associate, organize and bargain collectively in a lawful and peaceful manner, without penalty or interference as required under the laws of the jurisdiction in which such manufacturer produces Licensed Products.
Health and Safety
Manufacturers will provide employees with a safe and healthy workplace in compliance with all applicable laws and regulations, ensuring at a minimum, reasonable access to potable water and sanitary facilities, fire safety, and adequate lighting and ventilation.
Manufacturers will also ensure that the same standards of health and safety are applied in any housing they provide for employees.
Compensation
Manufacturer recognizes that wages are essential to meeting employees’ basic needs. Manufacturers will, at a minimum, comply with all applicable wage and hour laws and regulations, including those relating to minimum wages, overtime, maximum hours, piece rates and other elements of compensation, and provide legally mandated benefits
Protection of the Environment
Manufacturers will comply with all applicable environmental laws and regulations.
Other Laws
Manufacturers will comply with all applicable laws and regulations, including those pertaining to the manufacture, pricing, sale and distribution of merchandise.
All references to “applicable laws and regulations” in this Code of Conduct include local and national codes, rules and regulations as well as applicable treaties and voluntary industry standards.
