Please note: If the parties have an executed binding written agreement that applies to the purchased Goods or will execute such binding written agreement within 30 days of the date of the PO, then these Terms will not apply, otherwise these Terms will apply and shall be deemed binding upon the parties with respect to the PO and the purchased Goods.
1. Terms. Purchase of goods and/or services and/or other items (collectively “Goods”) that are described in the purchase order to which these terms and conditions (“Terms”) are attached (“PO”), is subject to these Terms and unless agreed otherwise between the SodaStream entity which executed the PO and any affiliated party thereto (“SodaStream”) and the supplier of the Goods stated in the PO or any affiliate party thereto (“Supplier”) in writing, these Terms shall apply to all quotations, sales and other document in connection with the Goods. Any terms and conditions contained in any quotations, invoice or other communication of Supplier are hereby rejected and in the event of any conflict these Terms shall govern and prevail. Acceptance of the Goods by SodaStream shall not constitute agreement to any Supplier terms and conditions.
2. Payment and Delivery. SodaStream shall pay the consideration for the Goods set forth in the PO (the “Consideration“). If not otherwise stated in the PO, payment terms are net ninety (90) days of receipt of a invoice. The Goods shall comply with the specifications and requirements provided to the Supplier by SodaStream or mutually agreed in writing between the parties, with respect to the Goods (the “Specifications”). In the event that the PO or Specifications include any acceptance tests or other milestones (e.g. design review, factory acceptance test, delivery dates, installation, site acceptance test, etc.), payment shall be subject to SodaStream’s written confirmation with respect to each such acceptance test or milestone, or if such are not included, subject to SodaStream’s written confirmation and acceptance of the Goods following the delivery thereof (collectively “Acceptance”). The Consideration is the complete, sole and conclusive remuneration to the Supplier and includes all applicable duties and taxes, except for value added tax (VAT) which must be shown separately on Supplier’s invoice for each shipment, if applicable. If not otherwise stated in the PO, delivery shall be DDP (Incoterms® 2010) at the SodaStream’s site stated in the PO (“Site”). Delivery shall be made pursuant to the agreed delivery schedule, via the carrier and to the place specified in the PO and shall include: (i) original invoice; (ii) original Bill of Lading; (iii) Original “EURO 1” (for European Union suppliers only) or Exporter’s Declaration; (iv) Certificate of Origin; and (v) packing list. If no delivery schedule is specified in the PO or mutually agreed, delivery will be made upon thirty (30) days of the date of the PO or as otherwise directed by SodaStream in writing, by a form of transportation which is considered industry standard. Supplier shall package all items in accordance with best industry practices and in suitable containers to ensure safe transportation and handling. PO number must appear on invoices, packing sheets, delivery tickets and bills of lading/airway bills, as applicable. SodaStream shall have the right to withhold and off-set any amounts that have accrued from any due payment.
3. Works on Site and Audit Rights. All activities performed on Site will be performed in accordance with SodaStream’s Site regulations (“Site Regulations”). Supplier shall be exclusively responsible to supply all necessary tools, gear and other items required for the due and safe performance of services on Site, if any (“Supplier’s Equipment“). Supplier will not have any claim against the SodaStream and/or anyone acting on its behalf in respect of Supplier’s Equipment. If a permit or regulatory approval is required for the provision of any services at the Site or with respect to the Goods, Supplier assumes the exclusive responsibility and expense of securing the requisite permits or approval. In the event that Supplier received or used SodaStream’s equipment or materials for the provision of the Goods (“SodaStream’s Materials”), such SodaStream Materials shall remain the sole property of SodaStream. Supplier will provide SodaStream, upon reasonable advance notice, access, during normal business hours, to Supplier’s facilities to inspect, sample, test and/or audit the Goods or any documentation, records or processes related thereto (including SodaStream’s Materials).
4. Supplier’s representations. The Supplier hereby represents warrants and agrees that: (i) it possesses the required skills, capacity and financial capability to provide the Goods in full conformance with the Specifications and these Terms and to perform its obligations hereunder; (ii) any and all design elements, software, hardware, ideas, and all other aspects of the Goods did not and shall not infringe or cause the infringement of intellectual property rights and all other rights of third parties; (iii) any services shall be at all times in full compliance with all applicable laws and regulations (including but not limited to laws and regulations relating to labor, environment and safety); (iv) the Supplier is a SodaStream approved vendor included in the approved vendor list; (v) Supplier shall be bound by SodaStream’s applicable policies, as may be in effect from time to time, and shall execute upon SodaStream’s request any confirmation or acknowledgement or compliance undertakings in respect thereof. Such policies shall include, among others, SodaStream’s code of conduct, safety policies, quality policies and/or commercial policies; (vi) Supplier shall be responsible at all times for Supplier’s representatives, agents, staff or labor and/or subcontractors (“Supplier Personnel”), full compliance with these Terms, any applicable laws and regulations and SodaStream’s policies and Site Regulations.
5. Relationship between the Parties. The relationship between SodaStream and the Supplier and/or the Supplier Personnel, for all purposes, is that of independent contractors, without express or implied authority to bind SodaStream by contract or otherwise. Supplier shall be responsible for all costs and expenses incident to performing its obligations hereunder.
6. Insurance. Supplier shall carry and maintain, with reputable insurers, insurance suitable to the Goods and/or Supplier’s activities and/or required by law or regulation including without limitation insurance for workers’ compensation, employer’s liability; commercial general liability (inclusive of product liability) and professional liability or errors & omissions. The insurance policies shall include a waiver of subrogation in favor of SodaStream and its affiliates, subsidiaries, directors, officers and employees and name them as an additional insured subject to cross liability with respect to SodaStream insurable interest. Supplier shall, upon the effective date hereunder and prior to expiration of any insurance policy, provide certificates evidencing compliant insurance policies. The Supplier shall require all contractors or subcontractors providing Goods to maintain insurance policies suitable for their activities.
7. Warranty of Goods. Supplier represents and warrants that the Goods: (i) fully comply with the Specifications and with any other documentation provided in connection with the Goods; (ii) shall be of new material; and (iii) shall be delivered in a professional workmanlike manner, free from all defects in material, design and workmanship and shall be fit for the purposes intended (the “Warranty”), for a warranty period of 24 months, effective as of the final Acceptance, or for the period provided in Supplier’s standard warranty for the Goods, whichever is longer (“Warranty Period”). Goods with an expiration limits shall have a balance of at least 80%. All Goods shall be free of any liens or encumbrances. The acceptance of the Goods or Consideration, or any part thereof, by SodaStream shall not constitute a waiver of any defect or failure. In the event of breach of the foregoing Warranty, SodaStream shall provide reasonable notice to the Supplier with respect thereto and Supplier shall promptly repair or replace, at its own costs, the defected Goods or any part thereof, and if such repair or replacement are not possible, refund SodaStream the entire consideration paid by SodaStream for the Goods. The above Warranty shall not apply to (i) normal wear and tear; or (ii) damages resulting from the gross negligence or willful misconduct of SodaStream.
8. Confidentiality. These Terms, the PO, Specifications and the engagement hereunder are confidential and its content may not be disclosed to any third party without SodaStream’s prior written consent. Supplier acknowledges that, during the term of this engagement, it may be exposed to certain confidential and/or proprietary information and materials regarding SodaStream’s business (including the SodaStream Materials), and including but not limited to information concerning SodaStream technology, customers and suppliers (and any of the foregoing, in respect of third parties and subcontractors associated with SodaStream and/or SodaStream’s affiliates), which is either identified as confidential or proprietary or is of confidential by nature (“Confidential Information”). Supplier shall refrain from using any and all Confidential Information for any purposes or activities other than those specifically stated in the PO or Specifications. Supplier shall not disclose or facilitate disclosure of Confidential Information to anyone without the prior written consent of SodaStream, except to its employees who need to know such information for carrying out the Services contemplated by the PO and who have agreed in writing to confidentiality terms that are no less restrictive than the requirements hereunder. Notwithstanding the foregoing, the Supplier may disclose Confidential Information pursuant to a subpoena or other court process only (i) after having given SodaStream prompt notice of receipt of such subpoena or other process; (ii) after the Supplier has given SodaStream a reasonable opportunity to oppose such subpoena or other process or to obtain a protective order; and (iii) after the Supplier used all reasonable efforts to obtain assurance that confidential treatment will be accorded to such Confidential Information. Confidential Information shall remain the property of SodaStream. Confidential Information in the custody or control of the Supplier shall be kept in a secure place at all times and will be properly protected against theft, damage or loss. Confidential Information shall be promptly returned or destroyed upon the earlier of (i) SodaStream’s written request; or (ii) termination of the engagement hereunder.
9. Work Products. The Goods and any Work Product will be considered work made for hire and Supplier agrees that exclusive ownership and all rights, title and interest, including intellectual property and moral rights, in and to the Work Product, and all improvements, modifications, and derivative works thereof, throughout the world, vests in SodaStream upon creation of the Work Product. “Work Products” means materials, ideas, inventions (whether or not patentable), works of authorship, designations, designs, know-how, and information made, conceived or reduced to practice in connection the Goods and any associated deliverables or in connection with any of SodaStream’s proprietary information or information provided by SodaStream to Supplier, whether or not patentable, copyrightable or otherwise protectable. If any part of the Work Product is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully made, used, reproduced, distributed and otherwise exploited without using or violating technology or intellectual property rights owned by or licensed to Supplier (or any person involved in the provision of the Goods) and not assigned hereunder, Supplier hereby grants SodaStream and its successors a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sub-licensable right and license to exploit and exercise all such technology and intellectual property rights in support of SodaStream’s exercise or exploitation of the Goods or Work Products (including any modifications, improvements and derivatives of any of them).
10. Indemnity and Liability. The Supplier shall indemnify, defend, and hold SodaStream and SodaStream’s affiliates, shareholders, directors, officers, employees, contractors, agents and other representatives (the “Indemnified Parties“) harmless from any and all claims, liabilities, losses, damages or expenses of every kind or nature whatsoever (including costs and fees of attorneys and other expert advisors) which Indemnified Parties might suffer, incur or become subject to, arising out of or in connection with or based upon: (i) any breach of any of the Supplier’s obligations and/or representations and warranties; (ii) if the Goods and or the use thereof by SodaStream infringe third party rights (including Intellectual Property rights); (iii) Supplier’s gross negligence or willful misconduct. IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THE GOODS, THESE TERMS AND THE ENGAGEMENT HEREUNDER, WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
11. Termination. SodaStream may cancel the PO within seven (7) business days of the date of the PO by providing the Supplier with prior written notice. Further, If at any time Supplier fails to perform or otherwise breaches these Terms, files a petition in bankruptcy, becomes insolvent, or dissolves (“Default”) and does not cure such Default within seven (7) days after receiving a written demand from SodaStream, SodaStream may terminate this engagement immediately by providing a written notice. The Supplier shall reimburse SodaStream promptly with respect to all costs and expenses associated with the termination of this engagement and shall immediately cease all activities hereunder. The above shall not derogate from SodaStream’s other rights and remedies under any applicable law.
12. Governing Law. This engagement and the PO shall be governed by and interpreted in accordance with the laws of the State of Israel (excluding its conflict of law provisions) and the courts of Tel Aviv shall have exclusive jurisdiction.
13. Miscellaneous. (i) No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound; (ii) If any provision hereunder is held by a competent court to be unenforceable under applicable law, then such provision shall be excluded and the remainder shall be enforceable in accordance with its remaining terms; (iii) Supplier may not transfer or assign any of its rights or obligations without SodaStream’s prior written consent. The Supplier may not subcontract any or all of its rights and obligations hereunder to any third party without SodaStream’s prior written consent; (iv) Any notice given hereunder shall be in writing and personally delivered, sent by email, facsimile or registered mail with confirmation of transmission or dispatched by courier, addressed to the other party. Any notice shall be deemed to have been served, if personally delivered or sent by fax or email, on the next following business day, if by courier, on the fifth following business day, and if by registered mail, on the tenth following business day.