Acknowledgement of Supplier
[directly ordered by Perch Agent acting as intermediary for Buyer]
Last Updated: December 23, 2022
UPDATES: Perch may update these Supplier Services Obligations from time to time by notifying you of such changes by any reasonable means, including by posting a revised Supplier Services Obligations through the Perch sites. Any such changes will not apply to any dispute between you and Perch arising prior to the date on which we posted the revised Supplier Services Obligations incorporating such changes or otherwise notified you of such changes. You agree that it is your responsibility to regularly check PerchHq.com for any updated links. In addition, by continuing to use or access any of the Perch sites or otherwise engaging with Perch after we post any changes, you accept the updated Supplier Services Obligations. The “Last Updated” legend above indicates when this link was last changed.
Supplier (the “Supplier”) does hereby accept and acknowledge that the following provisions shall apply to all orders placed for the manufacture, production and supply of products (“Products”) by any agent (“Agent”) with Supplier, and for the benefit of Whele LLC or its affiliates (“Buyer”):
1. Tooling Ownership, Maintenance, Marking, and Operation. Should Buyer decide to own the tooling at the manufacturer, Buyer will notify in the Agent in writing, Buyer shall own all right, title and interest in and to any tooling, equipment, material, dies, molds, jigs, fixtures, patterns, machinery, special test equipment, special tapes and gauges which have been furnished or paid for by, or charged against, Agent or Buyer, or which have had their cost amortized, in connection with the manufacture, production and supply of Products and components (“Tooling”) shall constitute Buyer’s property, and shall remain the property of Buyer. Such property, while in Supplier’s custody or control, shall be maintained, repaired and insured for loss or damage at Supplier’s expense. Tooling shall be delivered in good condition, normal wear and tear excepted, to Buyer, at Buyer’s expense, immediately upon request by Buyer. Supplier represents and warrants that Tooling will not be used for any work or for the production of any materials or parts other than for Buyer’s direct benefit without Buyer’s written permission. Supplier shall maintain the Tooling free and clear of all security interests, liens, encumbrances, or other defects in title. Supplier shall maintain organized records of tooling inventory; inventory to include depreciated usage and physical inspection of tooling; supplier will provide copies of records and/or photographs upon request. Supplier shall mark all of Buyer’s Tooling with an identifying plate in English, which indicates:
· That the Tooling is property of Buyer
· The Buyer’s Tooling number and Buyer’s item name and item number
· Date of Tooling manufacture
· Tooling location
2. Records; Audits. Supplier agrees to maintain complete and accurate books and records relating to the provision of services under this Agreement, including but not limited to, copies of Buyer's orders, copies of Agent's orders placed upon Buyer's written instructions, confirmations, Suppliers' invoices and supporting documentation, packing, shipping, and payment documents, Product inspection reports or certificates, and any reports of Product tests arranged by Agent at Buyer's request. Upon reasonable notice, Supplier further agrees to permit Buyer to inspect and/or copy Supplier’s books and records related to Supplier’s services under this Agreement.
3. Supplier Obligations; Compliance with Applicable Laws, Rules, Regulations, Directives and Standards. Supplier shall comply with all applicable laws, including the Foreign Corrupt Practices Act. Supplier represents and warrants to Buyer for the period required by applicable law, or such longer period as provided by Buyer to its customers, that all Products supplied to Agent for the benefit of Buyer are (a) free of defects in materials and workmanship, be merchantable, (b) be safe, be fit for the particular uses and purposes for which the Products were manufactured, (c) will strictly conform to all applicable laws, regulations, ordinances, orders, rules and industry standards and (d) will strictly comfort to Buyer’s quality standards provided from time to time, including those located at https://www.perchhq.com/for-manufacturers and (e) will strictly conform with all Buyer-approved samples and to Buyer’s specifications set forth in Agent’s purchase order.
If a Product is not as warranted, Buyer may return the defective Products for refund or credit (at Buyer’s discretion), including freight and shipping charges and related, documented expenses.
In addition, if Buyer or any governmental authority determines that any Products ultimately sold to Buyer are defective Products and a recall campaign is necessary or advisable, the Supplier will cooperate with the Agent or Buyer to implement such recall campaign and return the defective Products to the Supplier or otherwise dispose of them, as instructed by Buyer, at Supplier’s sole cost and expense. If a Product that is not as warranted causes incidental or consequential damages to Buyer, Supplier shall reimburse Buyer for any such incidental or consequential damages, including but not limited to any such damages Buyer paid to remedy its customers’ incidental and consequential damages.
4. Subcontracting. The subcontracting of any supply hereunder, if explicitly permitted in writing by Agent or Buyer, shall not relieve Supplier from its obligations hereunder. In the event that Supplier is permitted to subcontract the manufacture, assembly, or packaging of Products, such subcontractor shall be required to comply with all of Supplier’s obligations hereunder, including online agreement to a form of this acknowledgement in which it undertakes substantially the obligations of Supplier herein. These obligations are required to be passed through to any additional layers of subcontracting identified in the product manufacturing life cycle.
5. Intellectual Property; Trademarks. Supplier acknowledges that Buyer and/or its affiliates own all right, title and interest in and to Buyer’s Intellectual Property Rights and that none of Supplier, its affiliate, agents shall obtain any right, title or interest in or to such Buyer’s Intellectual Property Rights by supplying Products for the benefit of Buyer. Buyer shall own the exclusive right to the Intellectual Property Rights in the non-functional aspects of the Products, Product materials and any related packaging for the Products. All Intellectual Property Rights in the Products including but not limited to all invention rights, patent rights, trade secret rights, utility model rights as well as any design or development work relating to the Products or improvements made to the Products by Buyer or by Supplier is the exclusive property of Buyer. Supplier may not use, adopt, register or attempt to register as a trademark, trade name, trade dress, labels, package or product designs, service mark, or design any word, design, symbol or emblem which is identical or confusingly similar to Buyer’s trademarks. Supplier agrees to cooperate freely with the registration of any new Intellectual Property Right by Buyer. Upon request by Buyer, Supplier shall immediately cease any and all use of Buyer’s trademarks or any confusingly similar trade dress or trademarks and shall not manufacture and sell or enter into any agreement with any third party to manufacture or supply Products under Buyer’s trademarks or any confusingly similar variations thereof. As used herein, “Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret, trade dress and any other intellectual property laws worldwide.
6. Buyer Confidential Information. Supplier will use reasonable care to hold any BuyerConfidential Information it receives, including through Agent, in confidence and will not disclose such Confidential Information to anyone other than to its employees, board members, legal counsel, accountants, partners, contractors or consultants as long as they need to know the information and who are subject to confidentiality obligations no less restrictive than those set forth herein. “Buyer Confidential Information” shall include, but not limited to, any information regarding, referring, or relating to any designs, plans, artwork, illustrations, sketches, concepts, plans, presentations, photographs, videos, engineering, or other information regarding the manufacture of the products, including, but not limited to, any and all technical and non-technical specifications and data, unpatented technology, know-how related to the use of the patented and unpatented technology, manufacturing processes and services. Buyer Confidential Information does not include information that is already in the public domain, (ii) information that was already in the possession of or known to Supplier and that was not acquired by a breach of confidentiality to Buyer or to any other party, or (iii) information lawfully acquired from a third-party not being itself under an obligation of confidentiality to Buyer. Supplier acknowledges that any breach of this Section 6 may cause immediate and irreparable injury to Buyer and that monetary damages may be incapable of being calculated with certainty or inadequate to compensate Buyer for such breach. Having acknowledged the foregoing, the Parties agree that, in the event of such threatened, imminent, or actual breach, Buyer will be entitled to seek injunctive relief, without the need to post bond, in addition to all other remedies available to it at law or in equity. This Section 6 in no way limits the liability or damages that may be assessed against Supplier in the event of a breach of any of the provisions of this Section 6.
7. No Competitive Products; Most Favored Customer. Supplier shall not, nor may its affiliates or agents, during the term of this Agreement or after termination of this Agreement, manufacture, package, market or sell any product that, in Buyer’s sole determination, incorporates or is similar in appearance any of the dress design, or appearance encompassed in Buyer’s Trademarks. Supplier shall offer Buyer, through Agent, most favorable pricing for all Products.
8. Survival. All provisions of this Acknowledgement that reasonably may be interpreted or construed as surviving termination of Supplier’s relationship with Buyer through Agent will survive the termination of such relationship.
9. Governing Law and Venue. Without regard to its conflict of laws rules, this Agreement will be construed under and governed by the substantive laws and applicable statute of limitations of the State of Delaware, as well as any applicable U.S. federal laws. The U.N. Convention on Contracts for the International Sales of Goods does not apply to this Agreement. Venue for any claim or controversy arising in any way, directly or indirectly, from or relating to, this Agreement, including but not limited to its negotiation, formation, execution, performance, termination or interpretation, shall be exclusively laid and limited to a state or federal court sitting in the State of Delaware, USA. The parties agree to submit themselves to the jurisdiction of that court for resolution of any such claim or controversy.
10. Acceptance and Acknowledgement. Supplier hereby agrees to the terms of this acknowledgement, including that the provisions hereof shall inure to the benefit of, and may be enforced by, both Agent and Buyer.