C³ Master Supplier Agreement

Last Updated: April 21, 2022

This Master Supplier Agreement (this “Agreement”) constitutes a legally binding agreement between you (“Seller”) and C³ Corporation, a Wisconsin corporation (“Buyer”, and together with Seller, the “Parties”, and each, a “Party”). This Agreement shall be referenced by an applicable Order Number assigned by the Buyer (“OrderNumber”). This Agreement, together with the Purchase Order Form (as defined and incorporated herein) entered into by the Parties constitute the complete terms governing the sale of Goods/Services (as defined herein). C³ CORPORATION HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY SELLER, WHETHER OR NOT CONTAINED IN ANY OF SELLER’S BUSINESS FORMS OR IN SELLER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. Commencement of any work by Seller, or Buyer’s acceptance of delivery, of the Goods/Services (as defined herein) will manifest the Parties assent to the Agreement.

WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer the Goods/Services, as identified herein.

WHEREAS, the Parties shall execute a purchase order form detailing the Goods/Services to be purchased by Buyer (“Purchase Order Form”), which shall be referenced by the applicable Order Number;

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

Sale of Goods and Services. Seller shall sell to Buyer and Buyer shall purchase from Seller the services and/or goods, including software, set forth on the Purchase Order Form (the “Goods/Services”) in the quantities, at the prices, and upon the terms and conditions set forth in this Agreement.

1. Sale of Goods and Services. Seller shall sell to Buyer and Buyer shall purchase from Seller the services and/or goods, including software, set forth on the Purchase Order Form (the “Goods/Services”) in the quantities, at the prices, and upon the terms and conditions set forth in this Agreement.
2. Delivery Date. Seller shall deliver the Goods/Services in the quantities and on the date(s) specified in the Purchase Order Form or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods/Services is of the essence. If Seller fails to deliver the Goods/ Services on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods/Services on the Delivery Date.
3. .Quantity Seller shall deliver the quantities of the Goods/Services specified in the Purchase Order Form. If Seller delivers more or less than the quantity of Goods/Services specified in the Purchase Order Form, Buyer may reject all or any excess Goods/Services. Any such rejected Goods/Services shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods/Services and instead accepts the delivery of Goods/Services at the increased or reduced quantity, the Price for the Goods/Services shall be adjusted on a pro-rata basis.
4. Delivery Location. All Goods/Services shall be delivered to the address specified in the Purchase Order Form (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.
5. Shipping Terms. Unless otherwise agreed to in writing by the Parties, Seller shall coordinate shipment of Goods/Services to Buyer and assume responsibility for applicable transportation, freight, and other shipping costs or expenses, which shall be included in the Price (as defined below). Seller shall give written notice of shipment to Buyer when the Goods/Services are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, bill of lading and any other documents necessary to release the Goods/Services to Buyer, within three (3) business days after Seller delivers the Goods/Services to the transportation carrier. The Order Number must appear on all shipping documents, shipping labels, bill of lading, invoices, correspondence, and any other documents pertaining to this Agreement.
6. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods/Services to the Delivery Location. Seller bears all risk of loss or damage to the Goods/Services until delivery of the Goods/Services to the Delivery Location.
7. Packaging. Seller shall properly pack, mark, and ship Goods/Services as instructed by Buyer and otherwise in accordance with applicable law and industry standards and shall provide Buyer with shipment documentation showing the Order Number, the quantity of Goods/Services in shipment, the number of cartons or containers in shipment, Seller’s name, the air waybill or bill of lading number, and the country of origin.
8. Inspection and Rejection of Nonconforming Goods/Services. Buyer has the right to inspect the Goods/Services on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods/Services, and may reject all or any portion of the Goods/Services if it determines the Goods/Services are nonconforming or defective. If Buyer rejects any portion of the Goods/Services, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; or (b) reject the Goods/Services and require replacement of the rejected Goods/Services. If Buyer requires replacement of the Goods/Services, Seller shall, at its expense, within ten (10) calendar days replace the nonconforming Goods/Services and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods/Services. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under this Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
9. Price. Buyer shall purchase the Goods/Services from Seller at the prices set forth in the Purchase Order Form, as it may be modified from time to time by agreement of the Parties (the “Price”). The Price includes all packaging, transportation and shipping costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer.
10. Payment Terms.  Buyer shall make payment to Seller in accordance with the terms set forth on the Purchase Order Form after the completion of the delivery of the Goods/Services; provided, however, if no term is set forth on the Purchase Order Form, then the payment term shall be net sixty (60) days after the completion of the delivery of the Goods/Services. Buyer shall pay all properly invoiced amounts due to Seller, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than ten (10) calendar days prior to the date payment is due on the disputed invoice listing all disputed items. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
11. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
12. Warranties. Seller warrants to Buyer that for the period of manufacturer’s warranty or for one hundred eighty (180) days from the Delivery Date, whichever is longer, (the “Warranty Period”) all Goods/Services will: (a) be free from any defects in workmanship, material, and design; (b) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests, or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods/Services by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods/Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, within ten (10) calendar days: (1) replace or repair the defective or nonconforming Goods/Services and pay for all related expenses, including, but not limited to, transportation and shipping charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods/Services to Buyer, or (2) credit or refund the Price of such defective or nonconforming Goods/Services plus any inspection, test, and transportation and shipping charges paid by Buyer, less any applicable discounts, rebates, or credits.
13. Recalls. If Buyer, Seller, or any governmental authority determines that any Goods/Services sold to Buyer are defective or nonconforming goods (“Defective Goods”) and a recall campaign is necessary, either Party may implement such recall campaign. Buyer must return Defective Goods to Seller or destroy such Defective Goods, as determined by Buyer or Seller, at Seller’s sole cost and risk. Without prejudice to the Parties’ rights under this Agreement, if a recall campaign is implemented, at Buyer’s option and Seller’s sole cost, Seller shall promptly either repair or replace, or credit or refund Prices for, all such returned Defective Goods under the terms of Section 12. The foregoing will apply even if the warranties under Section 12 or any other product warranty applicable to the Goods/Services have expired. Seller is liable for all of Buyer’s costs associated with any recall campaign if such recall campaign is based on a reasonable determination that either: (a) the Goods/Services fail to conform to either the warranties under this Agreement or applicable law; or (b) the basis for the recall arose from Seller’s negligence or willful misconduct. Where applicable, Seller shall pay all reasonable costs and expenses associated with determining whether a recall campaign is necessary.
14. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
15. General Indemnification. Each party shall indemnify, defend, and hold harmless the other party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), relating to any claim of a third party arising out of or resulting from the acting Party’s negligence, willful misconduct, or breach of this Agreement. Neither party shall enter into any settlement without the Indemnified Party’s prior written consent.
16. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnified Party against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnified Party’s use or possession of the Goods/Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnified Party’s prior written consent.
17. Insurance. Seller shall at all times, at its own expense, maintain insurance in full force and effect that includes, but is not limited to the following amounts: commercial general liability insurance of $1,000,000 per occurrence and $2,000,000 in the annual aggregate including contractual liability, personal injury and advertising injury, product liability and completed operations, and bodily injury and property damage; umbrella/excess liability insurance of $5,000,000 per occurrence and $5,000,000 in the annual aggregate; employers’ liability insurance of $500,000 each occurrence, $500,000 disease policy limit, and $500,000 disease each employee; any statutorily required workers’ compensation insurance; automobile liability insurance of $1,000,000 each accident for both bodily injury and property damage;  C³ shall be named as an Additional Insured under all policies, other than workers’ compensation/employers’ liability.  Any claims-made coverage must continue for a minimum of two (2) years after the completion of the last Purchase Order.   A waiver of subrogation in favor of C³ Corporation shall apply on the GL, Auto, Umbrella and Workers Compensation/Employer’s Liability policies.  All policies shall be underwritten by a company with a minimum A.M. Best Ratting of A- VII. All insurance policies shall by primary and non-contributory in favor of C³. Certificates evidencing the foregoing coverage must be furnished to C³ prior to the execution of any purchase order.  Seller shall provide C³ with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy.  Under no circumstances will C³ be required to provide additional insured status to Seller, nor will C³’s insurer be required to waive subrogation rights against Seller or Seller’s insurer.

17. 1. Third Party Vendor/Contractor Insurance. Independent Contractor shall at all times, at its own expense, maintain insurance in full force and effect that includes, but is not limited to the following amounts: commercial general liability (CGL) insurance with limits of liability of not less than $1,000,000 per Occurrence and $2,000,000 annual aggregate.  CGL insurance shall be written on an ISO occurrence form CG 00 01 1001 (or a substitute for providing equivalent coverage) and shall cover bodily injury and property damage arising from premises operations, independent contractors, products-completed operations and personal and advertising injury, assumed under an insured contract.  Contractor’s insurance will name C³ Corporation its subsidiaries and affiliated entities as an Additional Insured under the CGL insurance using ISO additional insured endorsement CG 2010 0704 and CG 2037 0704 or a substitute providing equivalent coverage.  This insurance shall apply as primary and noncontributory insurance with respect to any other insurance afforded to C³ Corporation. Worker’s Compensation insurance affording statutory coverage and containing not less than statutory limits for the state(s) in which Contractor is conducting business related to this Agreement, and Employer’s Liability insurance in the amount of $500,000 each accident for bodily injury, $500,000 each employee for bodily injury by disease, and $500,000 policy limit for bodily injury by disease.  Contractor waives all rights against C³ Corporation and its agents, officers, directors, and employees from recovery of damages to the extent these damages are covered by the Workers’ Compensation and Employer’s Liability coverage.  Contractor shall obtain a waiver of subrogation endorsement equivalent to WC 00 03 13 to the benefit of C³ Corporation to affect this waiver.  Automobile Liability insurance shall include coverage for owned, hired and non-owned autos in an amount not less than $1,000,000 each Occurrence for a Combined Single Limit covering bodily injury and property damage.  Commercial Umbrella insurance with limits of liability of not less than $5,000,000 per Occurrence and Annual Aggregate.  Umbrella insurance shall provide coverage over the CGL, Employer’s Liability and Automobile liability as required, including Additional Insured coverage. All insurance policies must be underwritten by an insurance company with a minimum A.M. Best Rating of A- VII.  Certificates of insurance evidencing the above coverages must be furnished to C³ Corporation prior to the commencement of any work and on an annual basis thereafter.  Additional Insured, Waiver of Subrogation and Primary and Non-Contributory wording needs to be attached to the certificate of insurance.   

18. Termination. In addition to any remedies that may be provided under this Agreement, either Party may terminate this Agreement with immediate effect upon written notice to the other Party, either before or after the acceptance of the Goods/Services, if the other Party has not materially performed or complied with a term or condition of this Agreement, in whole or in part. If one Party becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then the other Party may terminate this Agreement upon written notice to the other Party. If a Force Majeure Event (as defined below) affecting Seller’s performance of this Agreement continues for more than twenty (20) calendar days, then Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates this Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods/Services received and accepted by Buyer prior to the termination.
19. Confidential Information. Unless confidential information is covered by a separate agreement between the Parties, all non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.

20. Intellectual Property Rights; Ownership.

20. 1. Intellectual Property Rights. Under this Agreement, “Intellectual Property Rights” means all industrial and other intellectual property rights incorporating the Buyer’s proprietary or Confidential Information, services, and/or software, including, but not limited to Buyer’s (i) patents; (ii) trademarks, service marks, trade dress, or trade names, together with the good will symbolized by any of the foregoing; (iii) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (iv) trade secrets as defined under applicable law; (v) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout in any part of the world.

20. 2. Ownership. Seller acknowledges and agrees that: (a) any and all Intellectual Property Rights are the sole and exclusive property of Buyer or its licensors; (b) Seller shall not acquire any ownership interest in any Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by Seller of the Intellectual Property Rights inures to the benefit of Buyer or its licensors, as the case may be; (d) if Seller acquires any rights in or relating to the Intellectual Property Rights,  by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to Buyer or its licensors, as the case may be, without further action by either of the Parties; (e) Seller acknowledges that any modifications or improvements made to the Goods/Services by Buyer, and the intellectual property rights therein, are owned by Buyer; (f) Seller shall use the Intellectual Property Rights solely for purposes of providing the Goods/Services under this Agreement and only in accordance with this Agreement and the instructions of Buyer; and (g) Seller acknowledges that Buyer is free to use any comments, questions, suggestions, recommended changes or the like regarding the Intellectual Property Rights incorporating the Buyer’s proprietary or Confidential Information made by Seller for Buyer (collectively, “Feedback”) irrespective of any other obligation or limitation between the Parties governing such Feedback. Seller hereby assigns to Buyer on Seller’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Buyer is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, and Buyer is not required to use any Feedback.

21. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
22. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) Sections 12, 13, 14, 15, 16, 19, 20, 22, and 24 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
23. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth on the Purchase Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
24. Miscellaneous.
    1. Severability. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement remain in full force and effect, if the essential terms and conditions of this Agreement for both parties remain valid, legal and enforceable.
    2. Amendments. No change or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by the Parties to this Agreement.
    3. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    4. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the foregoing, the Parties intend that, if Buyer terminates the Agreement in accordance with Section 18, Seller’s sole and exclusive remedy is the right to payment for the Goods received and accepted.
    5. Assignment. Neither Party may assign or otherwise transfer any of its rights or delegate any of its obligations under this Agreement without prior written consent of the other Party, except the requesting Party may assign any of its rights or delegate any of its obligations to any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority or any other entity acquiring the requesting Party’s business or assets pertaining to the Goods/Services, providing the successor party agrees to be bound by all the applicable terms of this Agreement.
    6. Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of Wisconsin, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Wisconsin. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
    7. Force Majeure. Except as provided in this Agreement, neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, regulation, law, or action; (e)  embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.
    8. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.

END OF C³ MASTER SUPPLIER AGREEMENT