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Terms and Conditions of Purchase

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Dated September 17, 2020.  Replaces all prior versions.


The following terms and conditions of purchase (“Terms and Conditions”) and any terms in other documents specifically incorporated herein by reference (collectively with the Terms and Conditions, the “Agreement”), are the entire and exclusive agreement between Canon Solutions America, Inc. (“Company”) and Supplier concerning the Products and/or Services provided or to be provided by Supplier under a Purchase Order, except to the extent the sale and purchase of the Products and/or Services are governed by a separate written agreement executed by Company and Supplier. Except as set forth in the preceding sentence, all prior and/or contemporaneous negotiations and agreements, oral or written, concerning the Products and Services are superseded by this Agreement. No course of prior dealings between the parties, usage of trade or acquiescence in any course of performance hereunder will be relevant to supplement or explain any term used in this Agreement. Company is not bound by and hereby expressly rejects Supplier’s general conditions of sale and any terms or provisions on any proposal, quotation, price list, acknowledgment, invoice, packing slip or the like used by Supplier. If Supplier does not reject these Terms and Conditions in writing, within ten (10) days of first receipt, such Terms and Conditions and this Agreement shall be deemed accepted by Supplier. After Supplier’s acceptance of a Purchase Order referencing or incorporating these Terms and Conditions, this Agreement will continue to govern the Products and Services under all subsequent Purchase Orders placed by Company which expressly reference these Terms and Conditions unless otherwise specified or agreed to, in writing, by Company. If there are any conflicts between the terms of this Agreement and the terms of a Purchase Order, the terms of this Agreement shall control. Capitalized terms used in these Terms and Conditions, and not otherwise defined, are defined in Section 24 (Definitions) below.

1. Ordering, Price and Payment Terms. Supplier will not deliver any Products to, or perform any Services for, Company, or incur any expenses related thereto, unless Supplier has received a Purchase Order from Company. Subject to this Agreement, Company will pay the price in the Purchase Order for each type and quantity of the Products and/or Services. Supplier warrants that such prices will not exceed the lowest prices charged by Supplier to similarly situated customers for similar quantities of Products and/or Services of like kind and quality. Supplier will invoice Company for the Products and/or Services no later than thirty (30) days after the date that Supplier ships the Products to Company and/or completes the Services for Company, as applicable, and Supplier hereby agrees to waive payment of any invoice submitted later than ninety (90) days after such shipment and/or completion, as applicable. Each invoice will contain, at a minimum: (i) the Company Purchase Order number, (ii) a description of the Products and/or Services delivered and/or performed, including serial numbers as applicable, (iii) quantity and unit price(s), (iv) Supplier’s name and invoice date, (v) name (where applicable), title, phone number, and complete mailing address and remit address of responsible person at Supplier, (vi) wire transfer or ACH instructions (if applicable), and (vii) such other documentation or information as Company may request from time to time. Each invoice shall be submitted as directed by Company in the Purchase Order. Nothing in this Agreement obligates Company to purchase any minimum amount of Products and/or Services from Supplier.

Subject to the terms of this Agreement, valid and undisputed invoices are due and payable within thirty (30) days after Company’s receipt. Company will be entitled to any prompt payment discounts agreed upon for any invoice paid within such thirty (30) days. Payment will not constitute acceptance of Products and/or Services, or impair Company’s right to inspect. If Supplier fails to fulfill any of Supplier’s obligations under this Agreement, Company may suspend or withhold payment to Supplier. The purchase price of the Products and/or Services is subject to set-off against any credits, refunds or claims of any kind claimed or asserted by Company related to any Purchase Order or agreement. Except for taxes pursuant to Section 2 (Taxes) below herein, charges not previously agreed upon will not be payable by Company.

2. Taxes. Company shall pay or reimburse Supplier for sales, use, excise or similar transaction taxes imposed on the sale of Products and/or Services to Company under this Agreement, to the extent such taxes are statutorily imposed on Company. In lieu thereof, and if applicable, Company will provide Supplier with a tax exemption number or, at Supplier's request, a tax exemption certificate acceptable to the taxing authority. Company shall not pay or reimburse Supplier for any taxes imposed on Supplier's income, capital, net worth or property, nor any employment related taxes on Supplier or Supplier Personnel. Any taxes to be paid by Company will be separately stated on Supplier's invoice, with identification of the type of tax, the applicable tax rate, the amount of tax charged and the taxing authorities, and shall be in a form that meets local tax requirements to ensure deductibility and tax recovery. If Supplier receives a refund of any taxes included in a Purchase Order, or otherwise collected from Company by Supplier, Supplier shall promptly pay Company the amount of the refund, including any interest.

3. Packaging of Products. Supplier, at Supplier’s expense, will package and prepare the Products for shipment to Company in accordance with sound commercial practices. Supplier will enclose with each shipment a complete packing list, including Company's Purchase Order number and the part number, quantity shipped and the remaining quantity to be shipped, if applicable. Supplier will mark the containers or packages with country of origin, necessary lifting, loading, special handling (including without limitation for items that are fragile or require temperature control) and shipping information, Company's Purchase Order number and the part number, dates of shipment and names and addresses of consignor and consignee, if applicable. The Bill of Lading number and weight of shipment will be shown for shipment on all Bills of Lading. Supplier shall be responsible for any loss or damage due to Supplier’s failure to package and prepare the Products in accordance with this Section 3. Company shall not be required to assert any claims for such loss or damage against the common carrier involved.

4. Delivery. Supplier will deliver the Products to Company, F.O.B. destination, as designated by Company (unless otherwise specified in a specific Purchase Order, which shall only apply to such Purchase Order), in one (1) or more installments by the due date specified in the Purchase Order.

5. Variation in Quantity. Except as approved in writing by Company, if Supplier delivers fewer or more Products than Company orders, or if the Products are delivered by Supplier to Company more than five (5) business days after any delivery date specified in the Purchase Order, those Products need not be accepted by Company. Accordingly, Company may receive, hold and return such Products to Supplier at Supplier's sole risk and expense. If Company accepts Products delivered more than five (5) business days prior to any delivery date specified in the Purchase Order, the time period for payment and discounts will not commence for those Products until the later of Company's receipt of Supplier's invoice for such Products or the specified delivery date.

6. Inspection and Acceptance. Company may, but need not, inspect the Products within ninety (90) days after actual receipt. Acceptance of the Products is based on Company's standard test procedures for such Products. Rejected Products may, at Company's option, either be returned or held for Supplier's instructions. Inspection, reshipment and return costs incurred with respect to such rejected Products will be borne by Supplier. Unless Company directs, Supplier will not replace returned Products.

Company will have ninety (90) days from completion of the Services to either (i) notify Supplier in writing of Company’s acceptance of the completed Services, or (ii) notify Supplier in writing specifying Company’s rejection of the completed Services and Company’s reasons therefor. At Company’s option, Supplier will promptly rectify the rejected Services.

Notwithstanding the foregoing, any acceptance of Products and/or Services is subject to compliance of the Products and/or Services with the terms of this Agreement, including, without limitation, compliance with Section 7 (Warranties) below.

7. Warranties. Supplier expressly represents and warrants to Company as follows:

(a) For a period of one (1) year from Company’s receipt of the Products, unless another period is specified in a specific Purchase Order (which such period shall apply only to such Purchase Order), each unit of the Products will (i) be in good working order, free from defects in design, materials, construction and workmanship, (ii) conform with the descriptions and specifications for that Product; and (iii) be merchantable and fit for the purposes expressed in or reasonably inferable from the specifications or other descriptions of the Products, which are referred to and incorporated herein by reference. At Company's option, Supplier will, at Supplier’s sole expense, repair, replace or refund the purchase price paid by Company for any Product that does not conform to this warranty.

(b) Supplier shall perform the Services with due skill and care in a professional manner, using the proper materials and employing sufficiently qualified staff. Supplier shall be fully liable for any and all third parties with which Supplier has contracted in connection with the Services. The Services, and all Deliverables furnished in connection with the Services, will be of good quality and free from defects in materials and workmanship for a period ending one (1) year from the date of acceptance, unless another period is specified in a specific Purchase Order (which such period shall apply only to such Purchase Order). At Company’s option, Supplier will, at Supplier’s sole expense, correct all Services performed by Supplier, and replace all Deliverables furnished by Supplier, which are found to be defective in materials or workmanship, including all necessary removal, replacement or repair of any portion of Services and/or Deliverables which may be damaged during the removal, replacement or repair.

(c) The Products, Services and Deliverables will be free from any and all security interests or other liens and encumbrances, restrictions, settlements, judgments or adverse claims.

(d) The Products will comply with, and be manufactured, assembled, packaged, transported, priced, advertised, branded, invoiced, sold and labeled in compliance with, all Applicable Law, and all information regarding the Products provided by or on behalf of Supplier to Company, including all weights, measures, sizes, legends or descriptions printed, stamped, attached or otherwise indicated with regard to the Products, will be true and correct.

(e) The Products will be genuine and are not counterfeit, adulterated, misbranded or falsely labeled.

(f) The Products and Services will be provided with, and be accompanied by all information and instructions necessary for proper and safe use. Where applicable, Supplier will provide Company with a current, complete and accurate Material Safety Data Sheet (MSDS), or similar applicable product safety sheet, for the Products.

(g) Supplier and the Services are in compliance with, and will continue to comply with (and Supplier requires its Subcontractors and any person under Supplier’s control to comply with) all Applicable Law. Supplier has adopted and implemented appropriate and effective policies to ensure compliance with Applicable Law.

(h) If providing the Products or Services involves the use, handling, maintaining, removal, transport, disposal of, or other action related to, hazardous materials, Supplier will be responsible for such actions. Supplier will manage and dispose of any and all hazardous materials in a safe and workmanlike manner, consistent with accepted industry standards and practices and, in accordance with Applicable Law. Supplier will be responsible for the provision, maintenance, and updating of, any permits or licenses required and related to hazardous materials.

(i) Supplier has, or will obtain, all the rights and licenses in the Products necessary to allow Company to use, market, license and/or resell such Products without restriction or additional charge. All required licenses in relation to the Products are, and shall remain, valid and in place, the scope of such licenses shall properly cover the intended use of the Products, and all such licenses shall include the right to transfer and the right to grant sublicenses. The Products and Services do not violate or infringe any third party's copyright, patent, trade name, trade secret or other intellectual property right and there are no claims or suits threatened, pending or contemplated against Supplier, or to the knowledge of Supplier (if the Supplier is not the manufacturer of the Products), against the manufacturer of any Product for infringement of any copyright, patent, trade name, trade secret or other intellectual property right occurring anywhere throughout the world and relating to the Products.

(j) If any Products are the subject of a Recall, Supplier shall be responsible for all matters and costs associated with the Recall, including, but not limited to: (a) consumer notification and contact; (ii) all expenses and losses incurred by Company in connection with such Recall (and where applicable, any products with which the Recalled Products have been packaged, consolidated or commingled), including but not limited to refunds to customers, lost profits, transportation costs, the cost to Company of Company’s associates’ time, system expenses in processing any Recall, and all other costs associated therewith; and (iii) initial contact and reporting of the Recall to any government agency having jurisdiction over the Recalled Products. Supplier shall promptly, and in no event later than twenty-four (24) hours after Supplier’s decision to initiate a Recall or Supplier’s receipt of a Recall notice from a government entity, inform Company of the Recall. Supplier shall promptly inform Company of Supplier becoming aware of any defect in the Products that could reasonably be expected to cause damage, illness, injury or death to humans, animals, or property, or the noncompliance of the Products with any Applicable Law, whether imposed by a government entity or by Company. If a government agency initiates any inquiry or investigation related to the Products or similar or related products of Supplier, Supplier shall notify Company immediately thereof (providing the purchase order number and sufficient detail) and take reasonable steps to resolve the matter without exposing Company to any liability or risk.

(k) Supplier shall fully cooperate in a timely manner, with any requests from Company for information, including without limitation in the form of surveys, forms or certifications, in connection with Applicable Law, audits, company policies, procedures or guidelines. Supplier represents, warrants and agrees that all information provided to Company in connection with such requests shall be accurate and complete, and that any changes affecting such information shall be promptly reported to Company in sufficient detail. Supplier shall not make any false or misleading representations in connection with any Company transaction including, but not limited to, oral misrepresentations of fact, the promotion or utilization of false documentation such as non-genuine customer purchase orders, fraudulent or forged documents, forged letters of destruction and/or other false or inaccurate records.

8. Indemnity. Supplier will defend, indemnify and hold harmless the Canon Indemnified Parties from and against any and all Claims incurred by, or asserted against, any of the Canon Indemnified Parties on account of, or arising out of (a) any breach or alleged breach of any representation or warranty herein or breach of any confidentiality obligations herein, (b) bodily injury, death or property loss or damage arising out of an act or omission of Supplier or Supplier Personnel, (c) any claim, demand or action instituted by Supplier or Supplier Personnel under workers’ compensation or similar laws or regulations, or (d) the sale, distribution or use of Products and/or Services purchased from Supplier. Supplier shall promptly notify Company of the assertion, filing or service of any Claim that is or may be covered by this indemnity and immediately take such action as may be necessary or appropriate to protect the interests of the Canon Indemnified Parties. In the event Company receives written notice of any such Claim against the Canon Indemnified Parties, Company shall promptly notify Supplier of such Claim. If Supplier assumes defense of such Claim without reservation of rights, Company shall provide Supplier with the authority, reasonably available information and reasonable cooperation (at Supplier’s expense) necessary to defend. Should Supplier not diligently pursue resolution of such Claim or fail to provide Company with reasonable assurance that Supplier will diligently pursue resolution, then Company may, without limiting Company’s other rights and remedies, defend the Claim and collect all costs of doing so from Supplier. Any settlement or compromise Supplier desires to enter into will be subject to Company’s prior written approval. Company and any other Canon Indemnified Party may, in its or their sole discretion, participate in the defense of such Claim. In the event of a claim of infringement of a third party's copyright, patent, trade name, trade secret or other intellectual property right, Supplier's obligation, at Supplier’s sole expense, will be to either (at Company’s option) (i) obtain a license for the applicable Canon Indemnified Parties to continue the use of or the sale of the infringing Product or Service; or (ii) modify or replace the infringing Product or Service with a non-infringing Product or Service which conforms to the specifications for the infringing Product or Service; or (iii) if neither (i) nor (ii) is practicable, promptly refund the purchase price paid by Company for such infringing Product or Service. Notwithstanding the preceding sentence, nothing contained in this Section 8 shall relieve Supplier of its obligation to defend and/or indemnify the Canon Indemnified Parties in connection with any Claim of infringement.

9. Time is of the Essence to this Agreement. All Products will be furnished and all Services rendered by the time or times specified by Company. In the event that Supplier anticipates any difficulty in complying with any deadlines for delivery, or with respect to any of its other obligations under this Agreement, Supplier shall promptly notify Company in writing.

10. Relationship of the Parties. Supplier shall at all times be an independent contractor and shall retain control over Supplier Personnel. Nothing in this Agreement shall make, or be deemed to create, a partnership, agency, legal representative, joint venture or landlord-tenant relationship for any purpose whatsoever, nor does this Agreement give either party any authority to represent, or incur any liabilities or obligations on behalf of, or in the name of, the other.

11. Assignment; Subcontractors. This Agreement may not be assigned by Supplier without the prior written consent of Company. Supplier acknowledges and agrees that Supplier will not subcontract any part of the delivery of the Products, or subcontract the performance of any Services, to any third party without the prior written consent of Company. Supplier agrees that (a) there will be no interruption in the supply of Products, or the performance of Services, as a result of use of a Subcontractor, (b) Supplier shall be fully responsible to Company for the performance of Supplier Personnel, without limiting a Subcontractor’s or any such other party’s responsibility, (c) Supplier will not cause or permit any lien to be placed on any property of Company, Company’s customers, or Supplier, which is the subject of this Agreement, and (d) Supplier shall impose on its Subcontractors the same obligations imposed on Supplier under this Agreement, including without limitation, with obligations relating to compliance with Applicable Law, confidentiality, indemnification and insurance.

12. Notices. All notices hereunder shall be in writing and shall be deemed to have been given upon personal delivery, five (5) days after being mailed by registered or certified mail, return receipt requested, or one (1) business day after being sent by nationally- recognized and traceable overnight courier. Unless otherwise specifically provided for herein, or notified otherwise by the recipient, notices must be addressed (i) as to Company, to: Canon Solutions America, Inc., One Canon Park, Melville, NY 11747, Attn: General Affairs, with a copy to Canon Solutions America, Inc., One Canon Park, Melville, NY 11747, Attn: Legal Department and (ii) as to Supplier, to Supplier’s last address known to Company.

13. Insurance Requirements. Supplier is responsible for obtaining, and maintaining in force, adequate insurance covering (i) the Products while being transported to Company and until risk of loss has passed to Company, and (ii) the Services to be performed and Supplier’s other contractual obligations under this Agreement, which such insurance shall cover all Supplier Subcontractors and which such insurance shall meet or exceed the requirements set forth on Attachment 1 hereto, which are incorporated herein by reference. The requirements set forth herein and on Attachment 1 are minimum requirements, and Company (in Company’s sole discretion) may specify greater or additional requirements. Supplier will provide a Certificate of Insurance and endorsements, that meet or exceed the requirements set forth on Attachment 1 hereto, to Company (i) in the case of Products, no later than the date upon which Supplier places the Products in the possession of a carrier for transportation to Company (ii) in the case of Services, no later than the date Supplier commences performance of Services under this Agreement. Title to, and risk of loss of, the Products will pass to Company upon Company’s actual receipt; provided, however, that if the Products, or tender of delivery of the Products, so fails to conform with this Agreement so as to give Company a right of rejection, or if Company rightfully revokes its acceptance, risk of loss of and title to the Products will be deemed to remain with Supplier.

14. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws rules. Supplier (i) agrees that any litigation, action or proceeding relating to this Agreement must be instituted in any state or federal court in Suffolk County, New York and (ii) waives any objection that Supplier might have with respect to jurisdiction, venue or forum. Nothing in this Section will affect Company’s right to serve process in any other manner permitted by law or to proceed against Supplier in any other court in which Supplier is subject to suit. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

15. Severability. If any term or provision of this Agreement is held invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining terms and provisions will not be affected or impaired.

16. Headings. The headings and titles of the provisions of this Agreement are inserted for convenience only and will not affect the construction or interpretation of any provision.

17. Cancellation. A Purchase Order may be cancelled, in whole or in part, by Company (i) in the case of Products, at no charge, upon notice to Supplier at least thirty (30) days prior to the scheduled delivery date of the Products specified in the Purchase Order, (ii) in the case of Services, upon ten (10) days prior written notice to Supplier, (iii) upon notice to Supplier if the Products or Services are not delivered on or before the delivery date specified by Company in the Purchase Order, (iv) upon notice to Supplier if Supplier fails to comply with any Applicable Law, or if Company reasonably believes that Supplier has failed to do so, or (v) if Supplier fails to procure and maintain the insurance required by this Agreement. Any Products delivered to Company pursuant to such cancelled Purchase Order may be received, held and returned to Supplier at Supplier's risk and expense. If Company agrees to accept deliveries after the specified delivery date, Company may direct Supplier to make shipment to the destination designated by Company by the most expeditious means available at Supplier's sole expense. Upon receipt of a cancellation notice from Company, Supplier will immediately stop all work on Services related to the applicable Purchase Order (unless Company directs Supplier to continue work until a specified date), and Company will have no further liability to Supplier other than to pay Supplier the pro rata amount of the amount set forth on the Purchase Order for Services completed on or prior to the cancellation date, and accepted by Company. Notwithstanding any expiration, termination or cancellation of this Agreement or any Purchase Order, Company shall have the right to continue to use the Products and Deliverables supplied by Supplier prior to the cancellation date.

18. Changes. Company may make changes within the general scope of this Agreement upon notice to Supplier. Supplier will notify Company within five (5) days after receipt of such notice if the change will affect the delivery schedule or price. Company is not responsible for additional charge(s) unless authorized in advance by Company in writing.

19. Modification of Agreement. This Agreement may not be altered, modified, suspended or amended, and no additional or different terms will become a part hereof, nor may this Agreement be rescinded, except pursuant to a writing specifically referencing this Agreement and signed by an authorized signatory of the party against whom enforcement is sought.

20. Equal Employment Opportunity and Affirmative Action. Supplier agrees that, as applicable, it and its subcontractors will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. 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. 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, protected veteran status or disability. Seller also agrees that, as applicable, it and its subcontractors will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), as well as any and all applicable federal, state and local government equal employment opportunity and affirmative action laws, including any and all applicable statutes, rules, regulations, ordinances and other guidelines.

21. Canon Trademarks. Canon Trademarks are and shall remain Company’s sole and exclusive property, or the sole and exclusive property of the applicable Canon Entity, as applicable. Supplier acknowledges that Supplier has not been granted and has not acquired, and agrees that Supplier shall not be granted or acquire, any right, title or interest in any of the Canon Trademarks. Any and all goodwill and rights under trademark and copyright law, and all other intellectual property rights, that arise in connection with the Canon Trademarks as a result of this Agreement or otherwise, shall inure to the sole and exclusive benefit of Company or, as the case may be, the applicable Canon Entity. Supplier may reproduce and use the Canon Trademarks solely as specified by Company, in writing, and as necessary to carry out Supplier’s obligations under this Agreement. Supplier shall reproduce the Canon Trademarks (including without limitation any Drawings) exactly as supplied hereunder, although size may be adjusted as appropriate. Supplier may not authorize, license, reproduce, loan or permit any exhibition, access to or other exploitation of the Canon Trademarks, other than as expressly authorized herein, without the prior written consent of Company, and Supplier shall strictly safeguard all Drawings in order to comply with the foregoing. Company makes no representations or warranties other than that Company has sufficient rights in the Canon Trademarks to authorize Supplier to reproduce and use them as permitted herein. Unless otherwise requested by Company, Supplier shall immediately return to Company, destroy or delete, the Drawings and provide a certificate of destruction, if applicable.

22. Confidential Information.

(a) Supplier acknowledges that, in connection with Supplier’s activities under this Agreement, Supplier may have access to Confidential Information. All Confidential Information constitutes valuable and unique assets of Company’s business. Supplier shall protect, and will insure Supplier Personnel protect, Confidential Information to prevent the unauthorized use, dissemination, disclosure or publication of Confidential Information. Supplier may disclose Confidential Information only to those Supplier Personnel who have a need to know and who are under an obligation of confidentiality at least as restrictive as that contained herein. Supplier will ensure that each such recipient of Confidential Information will be advised of the Supplier’s confidentiality obligations under this Agreement. Supplier agrees that Supplier will not disclose, and will ensure Supplier Personnel do not disclose, any Confidential Information or furnish copies of any written materials relating to the Confidential Information to any other person, firm or entity. If the disclosure of Confidential Information is required by law, Supplier will provide Company with prompt notice of such requirement prior to disclosure so that Company has an opportunity to seek an appropriate protective order or procedure if Company elects to do so. Confidential Information received may be used only to fulfill the purposes of this Agreement. Supplier further agrees that Supplier will not use the Confidential Information for its own benefit or for the benefit of any other firm or business with which Supplier may be associated. Immediately following expiration, cancellation or termination of this Agreement for any reason whatsoever, or upon Company’s request, Supplier shall return to Company and/or destroy all Confidential Information in Supplier’s possession or under Supplier’s control, and any and all copies thereof, in any medium (and certify in writing such return and/or destruction). Obligations regarding Confidential Information will survive expiration, cancellation or termination of this Agreement or any Purchase Order and survive perpetually.

(b) In connection with the activities hereunder, Supplier understands that Company does not wish to receive from Supplier any information which may be considered confidential and proprietary to Supplier and/or to any third party. Supplier represents and warrants that any information disclosed hereunder to Company by Supplier is not confidential and/or proprietary to Supplier and/or to any third party.

23. Miscellaneous.

(a) Supplier agrees that Supplier will not use in any way or for any purpose, the Canon Trademarks, name, photograph or other representations or material of Company or the Canon Entities in any advertising, promotion or publicity without obtaining Company’s prior written approval, in each instance.

(b) No failure or delay on the part of Company in exercising any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof of any right or remedy. Nothing contained in this Agreement or a Purchase Order shall be deemed a waiver of any representations, warranties or guarantees implied by Applicable Law. Acceptance of, or payment for, all or any part of the Products and/or Services furnished under this Agreement shall not be deemed a waiver of Company’s right to cancel or return or reject all or any part thereof because of failure to conform to the Purchase Order or by reason of defects, latent or patent, or other breach of warranties, or to make any claim for damages, including manufacturing costs and loss of profits or other special damages. No provision of this Agreement may be waived except in a writing signed by the party granting such waiver. Company may seek injunctive relief to enforce Supplier’s obligations under this Agreement, it being understood that damages for failure to comply with the obligations cannot be adequately measured, and that the granting of injunctive relief will be without prejudice to any other right which may accrue by reason of any breach of Supplier’s obligations under this Agreement.

(c) Any provision of this Agreement and any Purchase Order expressly, or by its nature, is reasonably intended to survive expiration, termination or cancellation, will survive expiration, termination or cancellation of this Agreement or such Purchase Order, including, without limitation provisions related to insurance, Confidential Information, Canon Information, Canon Trademarks, warranties, indemnity, audit rights, waiver, assignment and governing law.

23. Flow Down Provision.  Supplier acknowledges that the Products and/or Services Company may procure from Supplier pursuant to this Agreement may be for purposes of resale to Company’s customers and may be provided pursuant to agreements (“Prime Contracts”) entered into between Company and Company’s customers, and that pursuant to each Prime Contract Company may have liabilities and obligations to each of Company’s customer’s relating to the Products and/or Services (the “Flow-Down Obligations”).  Without limiting Supplier’s other obligations under this Agreement, Company may condition its agreement to provide Products and/or Services on Supplier’s agreement on the applicable Flow-Down Obligations.

24. Insurance Requirements.

Supplier shall procure and maintain, until all of the obligations of Supplier and Supplier’s Subcontractor have been discharged, including any warranty periods are satisfied, insurance against claims for injury to persons or damage to property which may arise from or in connection with the Products or performance of the work/Services which is the subject of this Purchase Order. The insurance requirements herein are minimum requirements and in no way limit the liabilities of Supplier. Company in no way warrants that the minimum limits contained herein are sufficient to protect the Supplier from liabilities that might arise out of the Products or performance of the work/Services under this Agreement by the Supplier or Supplier Personnel, and Supplier is free to purchase additional insurance. Insuring companies must be authorized to write insurance and conduct business in the state where the work/Services is to be performed.

  1. Commercial General Liability on an occurrence basis using form CG 00001 1204 or equivalent Including bodily injury, broad form property damage including Personal Injury and Death
    1. $1,000,000 combined single limit per occurrence
    2. $2,000,000 - aggregate
  2. Workers’ Compensation - Covering all employees and subcontractors
    1. Statutory limits
    2. Employers Liability: $1,000,000
  3. Commercial Vehicle Insurance (if vehicles are used in the performance of the services contemplated)
    1. Coverage for Supplier vehicles whether owned, non-owned, leased or hired.
    2. Limits shall be not less than $1,000,000 per occurrence - combined single limit
  4. Network Security / Cyber: (if applicable to services contemplated)
    1. One Million Dollars ($1,000,000)
    2. Including coverage including but not limited to:
      • Security and Privacy Liability
      • Regulatory Action
      • Event Management
      • Cyber Extortion
      • Media Content
  5. Professional Liability Insurance/Errors and Omissions: (if applicable to services contemplated)
    1. Policies insuring against liability for errors and omissions covering the professional activities contemplated under the Agreement in an amount of not less than One Million Dollars ($1,000,000) each claim

The foregoing insurance policies shall be on a primary and on a non-contributory basis to any other insurance which may be carried by Company, including completed operations.

With the exception of Workers’ Compensation, Supplier’s coverage shall name Company as additional insured.

The policies shall contain a provision providing Company at least thirty (30) days prior written notice of any change or cancellation or non-renewal of such insurance, and ten (10) days prior written notice in the event of cancellation of Non Payment of Premium. If any insurance company refuses or is unable to provide the required notice, Supplier or its insurance broker shall notify Company of any cancellation, suspension, or non-renewal of any insurance within seven (7) days of receipt of insurers’ notification to that effect.

Each of Supplier and insurance company agrees to waive its rights of subrogation against the Canon Indemnified Parties.

25. Definitions.

“Agreement” shall have the meaning set forth in the first paragraph hereof.

“Applicable Law” means all applicable international, foreign, domestic, federal, state and local laws, statutes, rules, regulations, treaties, constitutions, customs authority requirements, judicial decisions, judgments, ordinances, governmental restrictions, orders, decrees, codes, directives, guidelines, self-regulatory principles, industry standards and industry best practices affecting, involving or relating to the provision of Products or Services hereunder, including, without limitation those dealing with import and export control, privacy or data collection, storage, use, disclosure, protection or security, such as, without limitation, the Gramm-Leach-Bliley Act, the Health Insurance Portability & Accountability Act of 1996 (“HIPAA”), the California Online Privacy Protection Act of 2003, the Telephone Consumer Protection Act (“TCPA”), the Payment Card Industry Data Security Standard (“PCI DSS”), the National Institute of Standards and Technology (“NIST”) and any requirements or guidance issued by any applicable data protection authority responsible for privacy related matters or the processing of personal information in an applicable jurisdiction.

“Canon Entities” means, collectively, Company’s parent, subsidiaries and affiliates, and individually, each a “Canon Entity”.

“Canon Indemnified Parties” means, collectively, Company and the Canon Entities, and customers of Company and the Canon Entities, and each of the Company and each Canon Entities’ respective directors, officers, employees, consultants, contractors, agents, successors and assigns, and individually, each a “Canon Indemnified Party”.

“Canon Trademarks” means, collectively, Company’s copyrights, trademarks, trade names, corporate names, service marks, logos, artwork, images and symbols of Company or those of the Canon Entities, and shall include, without limitation, Drawings related thereto.

“Claims” means, collectively, any and all claims, losses, damages, liens, demands, attorneys’ fees, liabilities, costs, expenses, obligations, causes of action or suits, and individually, each a “Claim”.

“Company” shall have the meaning set forth in the first paragraph hereof.

“Confidential Information” means any and all confidential, proprietary and technical information of Company or any Canon Entity, communicated or otherwise made accessible to Supplier or Supplier Personnel, in any way, whether in tangible, visual or oral form, pertaining to the products, services, customers, locations or representatives of Company and/or the Canon Entities, including, without limitation, information regarding general business operations, business processes, methodologies, pricing methods and information, technical knowledge, trade secrets, employee lists, any information that can used to identify, contact or locate an individual, including an existing or potential employee or customer of Company and/or a Canon Entity (including, without limitation, first name or initial and last name, date of birth, mother’s maiden name, unique biometric, Social Security Number, passport number, driver’s license or other state identification number, financial information, cardholder data (including, without limitation, a primary account number, or a primary account number plus cardholder name, expiration date and/or service code), health information, medical or dental identification number, health insurance identification number, employment information, employer-assigned identification number, signature, personal web page, telephone number, biography location, home address, business address, other mailing address, email address or online identifier associated with an individual, geographic location, IP address or similar identifier, MAC (media access control) address, user ID, password, security question and answer, cookie information, profile and any other information relating to an individual, including usage and traffic data), third party information required to be maintained by Company and/or any Canon Entity as confidential, and related non-technical business information which is clearly identified as confidential at the time of disclosure or which Supplier or any representative of Supplier knows or should have reason to know is confidential. Confidential Information includes any information derived from or relating to the Confidential Information. The term Confidential Information does not include any information that (i) was lawfully in Supplier’s possession prior to any disclosure by Company as evidenced by Supplier’s contemporaneous written records, or (ii) is or becomes generally available to the public other than as a result of disclosure in violation of this Agreement.

“Deliverables” means the tangible and intangible results of the Services.

“Drawings” means any drawings, logos, artwork, images, codes, specifications and similar materials Company has loaned or provided hereunder (including such materials in electronic formats) related to Canon Trademarks.

“Products” refer to the products, materials, articles or items provided or to be provided by Supplier pursuant to this Agreement that are made the subject of any Purchase Order. “Products” include Deliverables.

“Purchase Order” means a written (electronic, hardcopy or fax) purchase order issued by Company to Supplier referencing the Terms and Conditions.

“Recall” means any removal of Products from the stream of commerce or the issuance of a corrective action plan or other remedial action initiated by a government entity or any other party with lawful authority to initiate such actions, Supplier, or Company.

“Services” means the services provided or contracted to be provided by Supplier, as specifically defined in a Purchase Order.

“Subcontractor” means a subcontractor retained by Supplier and approved by Company in accordance with the terms of Section 11 herein.

“Supplier” the supplier named on the Purchase Order.

“Supplier Personnel” means employees, Subcontractors, agents, representatives, and any other person(s) hired, retained or employed by Supplier.

Terms and Conditions of Purchase

Terms and Conditions of Purchase