TERMS & CONDITIONS

Supplier Terms & Conditions of Purchase

2. Acceptance & Fulfillment: Averna purchase orders are governed exclusively by this Agreement. The Supplier is deemed to have accepted the purchase order and this Agreement if the Supplier does not reject the purchase order within 24 hours of receiving it.
3. Compliance with Applicable Laws: Supplier shall comply with all Applicable Laws.
4. Confidential Information: “Confidential Information” means any information provided by Averna to the Supplier, including but not limited to product requirements, specifications, data, pricing, sales methods and techniques, sales figures, marketing plans, budget and other financial information, employee details, internal business policies and procedures. Confidential Information shall also include information belonging to Averna’s customers (ie: customer names, contact details, customer product requirements or specifications) as well as any information generated during and as a result of the Agreement (including any pricing arrangements, rebate deals, settlement discounts, terms of payment, other terms of trade, joint marketing plans and artwork, design and specifications for any goods and/or services manufactured specifically at Averna’s request), or is otherwise reasonably identifiable as confidential or proprietary information. Confidential Information does not include information or knowledge which is already publicly known, or which subsequently becomes generally publicly known other than as a direct or indirect result of a breach of this Agreement by the Supplier. The Supplier undertakes for itself, its employees, contractors and subcontractors, not to, at any time either during the Agreement or after termination of the Agreement, either directly or indirectly, without prior written consent of Averna: (a) disclose or permit the disclosure of, the Confidential Information to any person other than required to fulfill the purchase order of Averna; or (b) use or permit the use of the Confidential Information to compete with Averna, or in any manner which may injure or cause loss to Averna or its customers. Supplier acknowledges that in the event of unauthorized disclosure by the Supplier or its employees, Averna may seek appropriate equitable or injunctive relief in addition to whatever other remedies it might have at law.
5. Anti-kickback Clause. Supplier agrees not to provide to, or offer any representative, officer, director or employee of Averna, or any member of such person’s family, any favors, gifts, gratuities or favorable treatment for the purpose of securing a purchase order or any future business opportunities from Averna.
6. Relationship: Company and Supplier are independent parties. This Agreement does not in any way imply a principal and agent or any similar relationship between Averna and the Supplier.
7. Invoice and Payment Terms: Supplier must invoice the Averna entity that placed the purchase order. Averna will pay undisputed invoices, in the currency specified in the Averna purchase order, sixty (60) days after the date of receipt. Set off: Averna may set off or deduct from any amount due and owing by it to the Supplier, any amounts or compensation which Averna, in good faith, believes are due and owing by the Supplier to Averna.
8. Taxes and other: Unless the parties specifically agree to the contrary in writing, the prices for the goods and/or services include delivery, all taxes imposed on the Supplier, all importation costs including but not limited to customs duty and related customs and transportation charges.
9. Shipping & Labeling: Unless the parties specifically agree to the contrary in writing, Supplier is responsible for shipping (costs & logistics) as well as duties and other custom charges, to the delivery location indicated in Averna’s purchase order. The goods must be properly packed and labeled in accordance with Applicable Laws and standards. ESD Sensitive: All electrostatic discharge sensitive devices shall be packaged and handled to preclude damage by electrostatic discharge. Packaging shall be properly and clearly marked to indicate contents are subject to electrostatic damage.
10. Delivery: Supplier shall ensure that the goods and/or services are delivered on the date and at the location specified by Averna. Time is and shall remain of the essence. No acts of Averna, including without limitation, modifications to a purchase order or this Agreement or acceptance of late deliveries, shall constitute a waiver of this term. The Supplier may not make any changes to the delivery schedule, including shipments made in advance of delivery dates, without the prior written approval of Averna. Supplier shall promptly notify Averna as soon as it becomes aware of any delay or potential delay in delivery, including due to supply constraints. If Supplier does not, or reasonably indicates by statements or actions of its employees that it will not deliver and install the goods and/or services in accordance with this Agreement, Averna may, at its option, exercise any or all of the following options: (i) require Supplier to deliver the work in progress using priority freight delivery (with all incremental freight charges at Supplier’s expense) and provide Averna with all relevant design, drawings, software, documentation and anything else required for Averna to complete the goods and/or services at Supplier’s sole cost; (ii) purchase and install substitute goods from a third party and hold Supplier accountable for the difference in price paid for substitute goods and/or services, as well as all amounts paid for shipping, insurance, handling, installation and any taxes or duties; and (iii) all other remedies provided at law, in equity, or under this Agreement. If the goods Averna purchases include software, off the shelf or custom developed, Supplier will provide Averna with a list of all open-source software that is used therein.
11. Modifications/Changes: Averna reserves the rights at any time to modify its purchase orders by making changes in specifications to any goods and/or services covered by the order, in which case an equitable adjustment shall be negotiated reasonably and promptly, and the order shall be modified in writing accordingly. The Supplier shall not make any changes to the goods and/or services without the prior written consent of Averna. Supplier shall promptly notify Averna of any changes to the processes used to produce the goods that in any way affect the goods’ electrical or mechanical characteristics, a change to the manufacturing location, or any end-of-life status.
12. Inspection & Remedies: All goods and/or services are subject to inspection and test by Averna. Any goods and/or services found to be defective upon Averna’s inspection are to be returned at Supplier’s expense. Without limiting any other rights or remedies which may be available to Averna at law or in equity, the Supplier will, at the option of Averna, (i) promptly repair or replace the goods and/or services free of charge, (ii) assume the cost of repair or replacement of the good and/or services by a third party, and/or (iii) provide a full refund for the good and/or services. Payment for any goods and/or services shall not be deemed acceptance.
13. Hazardous Materials: Supplier agrees to provide, upon and as requested by Averna, to satisfy any Applicable Laws governing the use of any hazardous substances all reasonably necessary documentation to verify the material composition, on a substance basis, including quantity used of each substance, of any goods, and/or of any process used to make, assemble, use, maintain or repair any goods.
14. Risk and Title: Supplier assumes all risk of loss or damage to the goods until the receipt and acceptance of the goods by Averna at the named delivery location. Title shall pass to Averna upon acceptance.
15. Warranty: By accepting the purchase order of Averna, Supplier represents and warrants that for a period of twenty-four (24) months from the delivery date, the goods will: (i) be free from any defects in workmanship, material and design; (ii) strictly conform to the applicable specifications; (iii) be of merchantable quality and fit for their intended purpose; (iv) be newly manufactured; (v) be free and clear of all liens, security interests, or other encumbrances; (vi) not infringe or misappropriate any third party’s intellectual property rights; and (vii) be compliant with all Applicable Laws and standards. Supplier warrants that it shall perform the services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement. These warranties shall survive delivery, inspection, acceptance, or payment of or for the goods and/or services. Supplier assigns and passes through to Averna any third-party manufacturers and licensors’ warranties and indemnities for the goods and/or services. Supplier acknowledges and agrees that Averna may pass on to the ultimate buyer of the goods and/or services the warranty provided for herein. The warranties set forth in this section are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Averna’s discovery of the noncompliance with the foregoing warranties.
16. Intellectual Property: All molds, dies, jigs and other hardware as well as drawings, design, software programs, source codes or other intellectual property paid for by Averna are the property of Averna, to be delivered to Averna on demand or to be maintained in first class operative condition at Supplier's expense. The disposition of same, other than a return to Averna, is to be made only on written instructions of Averna.
17. To the extent drawings and specifications are furnished by Averna, all the goods and/or services ordered are to be manufactured or supplied strictly in accordance with such drawings and specifications. Supplier agrees to grant and hereby does grant to Averna a non-exclusive royalty-free and irrevocable license to make, have made, use and sell, any improvement in the goods and/or services ordered which is made or introduced by Averna in its work. Supplier shall save Averna, its customers and users of its goods and/or services, harmless from liability or suit of any nature, including costs and expenses, arising from the manufacture, use or sale of any invention in the articles ordered except to the extent that any such liability or suit shall have arisen because of Supplier's manufacture of articles of original design of Averna and made by Supplier in accordance with specifications and drawings which are furnished herewith by Averna. Supplier agrees to grant and hereby does grant to Averna a royalty-free, non-exclusive, and irrevocable license, to reproduce, translate, publish, use and dispose of, and to authorize others so to do, any copyrighted or copyrightable material incorporated in or supplied or intended to be supplied as a supplement with the goods and/or services ordered.
18. Electronic Data, Privacy and Cyber Security: Where Supplier has access to, collects, stores or otherwise processes data from or on behalf of Averna (e.g. including, as the case may, data from Averna customers) in connection with its supply of goods and/or services (“Data”), including any data that may be generated by the Supplier, Supplier shall at a minimum: (i) only access, collect, store or otherwise process Data for the sole purpose of fulfilling Supplier’s obligations under the Agreement, or as otherwise expressly permitted by Averna in writing; (ii) maintain reasonable and appropriate administrative, technical and organizational measures and safeguards to preserve and protect the security, integrity and confidentiality of the Data, aligned with applicable industry standards such as ISO / IEC 27001 or IEC 62443 and Applicable Laws related to privacy; and (iii) any infrastructure, systems, services, products or platforms used by Supplier to access, collect, tore, or otherwise process Data, including data gathered from third-parties on behalf of Averna, shall be developed, maintained, and operated in accordance with industry-recognized security requirements and compliance with Applicable Laws. Supplier shall maintain a reasonable and industry appropriate business continuity plan to ensure its supply of the goods and/or services, considering data and cybersecurity risks included in its comprehensive risk analyses, contingency plan and solutions for its continuous delivery and operations. Supplier shall notify Averna immediately, with explicit detail, if it detects a confirmed or reasonably suspected misuse, compromise, or unauthorized access, destruction, loss, alteration, acquisition or disclosure of any Data, security breach or suspected vulnerability, whether in Suppliers’ IT systems or network, or in relation to the Supplier (“Security Incident”): Take prompt steps to investigate, contain, and remediate any Security Incident and cooperate with Averna in any subsequent investigation and response in connection with the Supplier’s IT systems or networks, or in relation to the Supply, and evidence demonstrating the completion of those activities, in compliance with Applicable Laws.
19. Compliance with Export Control Laws. Supplier agrees to comply with all applicable export and reexport control laws and regulations. Supplier covenants that it shall not, directly or indirectly, sell, export, reexport, transfer, divert, or otherwise dispose of any software, source code, or technology (including products derived from or based on such technology to any country (or any individual national thereof) subject to antiterrorism controls, sanctions or embargo, or to any other person, entity, or destination prohibited by the laws or regulations of the United States. Supplier will cooperate with Averna should Averna require any export classification or related information to satisfy any Applicable Laws.
20. The Supplier shall indemnify and hold harmless Averna, its affiliates, and their respective directors, officers, employees, agents, representatives, shareholders, customers, successors, and permitted assigns (collectively, the "Indemnified Parties") from and against all losses, damages, liability, actions, judgments, costs, and expenses (including, but not limited to, reasonable attorneys’ and other professional fees and other expenses of litigation)suffered, incurred or sustained by, or asserted against, Indemnified Parties based upon or relating to: (i) any inaccuracy or misrepresentation made by the Supplier; (ii) a breach of warranty or any terms of the purchase order, or non-­fulfilment of any of the covenants to be performed by the Supplier pursuant to this Agreement; (iii) any infringement or alleged infringement by the goods and/or services of a third party’s intellectual property rights; (iv) the negligence or willful misconduct of the Supplier or its employees or contractors; (v) personal injury, including death, or property damage sustained by a third party resulting from or arising out of an act or omission of Supplier or its employees or contractors in fulfillment of the Agreement or (v) any failure by the Supplier to comply with any Applicable Laws, regulations, or codes in the performance of its obligations under this Agreement.
21. Insurance: The Supplier must have in place sufficient insurance policies to cover its potential liability under the Agreement including but not limited to all risk and product liability insurance and professional liability insurance. Upon request, the Supplier will provide Averna with evidence of the adequacy of such insurances.
22. Termination: Averna may cancel any undelivered orders in whole or part at any time, or cancel the Agreement for any reason, upon notice (electronic) to the Supplier, without liability. Termination shall not relieve Averna of its payment obligations for any goods and/or services delivered prior to termination. In the event Averna terminates the Agreement for default such as a breach by Supplier of warranty or the Agreement or the Supplier becomes insolvent, 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, Supplier shall be liable to Averna for damages sustained by it by reason of the default which gave rise to the termination. Termination of the Agreement will not prejudice any other rights or remedies under the Agreement.
23. Return of Goods and/or services: For non-customized goods, Averna may return goods which are not delivered on time or surplus to its needs without penalty if returned within 30 days of the date of receipt. Goods may be returned outside this delay but will be subject to a reasonable restocking fee as mutually agreed to between the parties, not to exceed 15%. All goods returned in the case of breach of warranty or this Agreement will be at the Supplier’s cost.
24. Most favored Terms: If the Supplier offers more favorable terms or conditions to any other company for similar goods and/or services, the Supplier will concurrently extend equal or better terms and conditions to Averna, and this Agreement will be deemed amended to provide those terms. Any amounts charged in excess in violation of this provision will be refunded or credited to Averna.
25. Audit: Averna may inspect, during business hours on giving a minimum of 2 days’ notice, any raw materials, manufacturing process, packaging, batching, recording or transport facilities or motor vehicles used in forming, manufacturing, handling, packaging or transporting the Goods and/or services, and may audit Supplier’s records to verify compliance with this Agreement.
26. Waiver: Failure or omission by Averna at any time to enforce or require strict or timely compliance with any provision of this Agreement will not affect or impair that provision, or the right of Averna to avail itself of the remedies it may have in respect of any breach of a provision, in any way.
27. Governing Law: The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement, or any goods or services sold under this Agreement. This Agreement will be governed by and construed and enforced under the laws of the state or country where Averna is registered, without reference to any choice of law rules or principles which would otherwise dictate application of another state’s or country’s laws. The Parties select as the exclusive forum for any dispute related to the Agreement, and irrevocably consent to the exclusive jurisdiction and venue of the courts of the state and country where Averna is registered in accordance with the following table: 

28. No Assignment: Supplier shall not assign, transfer, delegate, or sub-contract any of its rights or obligations under this Agreement without the prior written consent of Averna. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder.
29. Force Majeure: Neither party shall be in default if failure to perform any obligation hereunder is caused solely by a Force Majeure Event. The delayed Party’s time for performance will be excused for the duration of the Force Majeure Event, however Averna may terminate the purchase order if the Supplier fails to provide any remedy or solution for the situation or if the Force Majeure Event lasts longer than thirty (30) days. “Force Majeure Event” are those events that are unforeseeable, unavoidable, outside of the reasonable control of the parties, and have the effect of rendering performance of contractual obligations impossible. Supply chain issues will not qualify as a Force Majeure Event.
30. Severability: If any part of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. If the Order cannot be completed without the ineffective/voided terms, the parties agree to replace them by one that serves the purpose of the Order as closely as possible.
    

02/2022